id
int64 1
1.1k
| input_prefix
stringlengths 5
151
⌀ | input
stringlengths 910
884k
| output
stringlengths 17
3.02k
|
|---|---|---|---|
604 | Recognition, organisation and leadership of churches and religious communities | II. RELEVANT DOMESTIC LAW A. Overview of developments in the relevant legislation 21. Between 12 February 1990 and 31 December 2011 religious activities were regulated by the 1990 Church Act, which defined religious communities with a membership exceeding one hundred as Churches. 22. As of 1 January 2012, the 1990 Church Act was replaced by Act no. CCVI of 2011 ( “ the 2011 Church Act”). Under the new Act, religious communities could exist either as Churches or as associations carrying out religious activities (“religious associations” according to the terminology used by the Constitutional Court). The only entities which qualified as Churches were those listed in the Appendix to the 2011 Church Act and those classified as Churches by Parliament subject to certain conditions, originally until 29 February 2012. The constitutional basis of this regulation was provided by Article 21 § 1 of the Transitional Provisions of the Fundamental Law, which vested in Parliament the power to identify the recognised Churches in the relevant cardinal law and to determine the criteria for the recognition of Churches that might additionally be admitted in the future. Formerly registered Churches could be converted, at their request, into associations and carry on their activities on that basis; however, under the new rules they were not entitled to any budgetary subsidies. Originally (under the 1990 Church Act), there had been 406 registered Churches, whereas the Appendix to the 2011 Church Act contained only fourteen. The Appendix, in force as of 1 March 2012, lists twenty-seven Churches and Church alliances, giving a total of thirty-two Churches. According to the information published by the tax authorities, these thirty-two Churches do not fully coincide with the thirty-two most supported Churches if such support is measured by the number of taxpayers making voluntary tax donations in their favour. On 28 December 2012 the Constitutional Court repealed, among other provisions, those rules of the Transitional Provisions of the Fundamental Law which had granted Parliament the right to identify recognised Churches. On 26 February 2013 it also annulled those provisions of the 2011 Church Act which had led to the applicants ’ being deprived, by force of law, of their Church status. 23. Partly in response to the above-mentioned Constitutional Court decisions, the power of Parliament to grant special Church status was reintroduced into the Fundamental Law itself, notably by its Fourth Amendment, which came into force on 1 April 2013. This introduced the terms “ Churches ” and “other organisations performing religious activities”, with Churches being defined as those organisations with which the State cooperates to promote community goals and which the State recognises as such. In a similar vein, under the rules of the 2011 Church Act as amended with effect from 1 August 2013, the term currently in use is that of “religious communities”; this term encompasses “incorporated Churches ” ( bevett egyház ) as well as “organisations performing religious activities” ( vallási tevékenységet végző szervezet ). However, all these entities are entitled to use the word “ Church ” ( egyház ) in their names. 24. Under the rules in force, for a religious community to become an “incorporated Church ” it must prove either one hundred years of international existence or that it has functioned in Hungary for twenty years in an organised manner and must prove a membership which equals at least 0.1 % of the national population. Moreover, it has to prove its intention and long-term ability to cooperate with the State to promote public-interest goals. On the other hand, a group of individuals may become an “organisation performing religious activities” if it has at least ten members and is registered as such by a court. 25. The Fifth Amendment to the Fundamental Law (which came into force on 1 October 2013) was intended to emphasise, also at constitutional level, the principle that everyone is entitled to establish special legal entities (“religious communities”) designed for the performance of religious activities, and that the State may cooperate with some of those communities to promote community goals, conferring on them the status of “incorporated Church ”. To reflect the uniformity of “[incorporated] Churches ” and “other organisations performing religious activities” in terms of freedom of religion, those terms were replaced by the overall term “religious communities” throughout the text of the Fundamental Law. However, under the present rules of Hungarian law, incorporated Churches continue to enjoy preferential treatment, in particular in the field of taxation and subsidies. In particular, only incorporated Churches are entitled to the 1% of personal income tax donated by citizens and to the corresponding State subsidy. Moreover, in decision no. 6/2013 (III. 1.), the Constitutional Court identified, in a non-exhaustive list (see points 158 to 167 of the decision in paragraph 34 below), several activities whose exercise is facilitated – in legal, economical, financial and practical terms – by the lawmaker in the case of incorporated Churches but not in the case of other religious communities: these examples include religious education and confessional activities within State institutions, the operation of cemeteries, including religious funerals, the publication of religious printed material and the production and marketing of religious objects. Notwithstanding the fact that the applicants have nominally regained their legal status, they cannot benefit from preferential treatment of this kind, which is available only to incorporated Churches. B. Constitutional provisions 26. The Fundamental Law of Hungary, as in force on 1 January 2012, provided : Article VII “1. Every person shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to choose or change religion or any other conviction, and the freedom for every person to proclaim, refrain from proclaiming, profess or teach his or her religion or any other conviction by performing religious acts or ceremonies or in any other way, whether individually or jointly with others, in the public domain or in his or her private life. 2. The State and the Churches shall be separate. Churches shall be autonomous. The State shall cooperate with the Churches to promote community goals. 3. The detailed rules for Churches shall be regulated by a cardinal Act.” 27. With effect from 1 April 2013, pursuant to the Fourth Amendment to the Fundamental Law of Hungary, the text of Article VII of the Fundamental Law was amended as follows: Article VII “1. Every person shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to choose or change religion or any other conviction, and the freedom for every person to proclaim, refrain from proclaiming, profess or teach his or her religion or any other conviction by performing religious acts or ceremonies or in any other way, whether individually or jointly with others, in the public domain or in his or her private life. 2. Parliament may pass cardinal Acts recognising certain organisations which perform religious activities as Churches, with which the State shall cooperate to promote community goals. The provisions of cardinal Acts concerning the recognition of Churches may be the subject of a constitutional complaint. 3. The State and Churches and other organisations performing religious activities shall be separate. Churches and other organisations performing religious activities shall be autonomous. 4. The detailed rules for Churches shall be regulated by a cardinal Act. As a requirement for the recognition of any organisation performing religious activities as a Church, the cardinal Act may prescribe an extended period of operation, social support and suitability for cooperation to promote community goals.” 28. With effect from 1 October 2013, pursuant to the Fifth Amendment to the Fundamental Law of Hungary, the text of Article VII of the Fundamental Law was amended as follows: Article VII “1. Every person shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to choose or change religion or any other conviction, and the freedom for every person to proclaim, refrain from proclaiming, profess or teach his or her religion or any other conviction by performing religious acts or ceremonies or in any other way, whether individually or jointly with others, in the public domain or in his or her private life. 2. In order to practise their religion, persons sharing the same principles of faith may establish religious communities in organisational forms defined by cardinal Act. 3. The State and the religious communities shall be separate. Religious communities shall be autonomous. 4. The State and the religious communities may cooperate to promote community goals. Such cooperation shall be established by decision of Parliament, at the request of the religious community concerned. Religious communities participating in such cooperation shall operate as incorporated Churches. With a view to their participation in activities promoting community goals, the State shall confer specific rights on the incorporated Churches. 5. Common rules concerning religious communities, the conditions of cooperation, the incorporated Churches and the detailed rules governing them shall be defined and regulated by a cardinal Act.” C. Statutory provisions 29. In its relevant provisions the 2011 Church Act, as in force on 1 January 2012, read as follows: Religious activities Section 6 “(1) For the purposes of this Act, religious activities relate to a set of beliefs directed towards the transcendental which has a system of faith-based principles and whose teachings focus on existence as a whole, and which embraces the entire human personality and lays down specific codes of conduct that do not offend morality and human dignity. (2) The following shall not be considered as religious activities per se : ( a) political and lobbying activities; ( b) psychological and parapsychological activities; ( c) medical activities; ( d) business / entrepreneurial activities; ( e) pedagogical activities; ( f) educational activities; ( g) higher educational activities; ( h) health care activities; ( i) charitable activities; ( j) family, child or youth protection activities; ( k) cultural activities; ( l) sports activities; ( m) animal protection, environmental protection or nature conservation activities; ( n) information technology activities which go beyond the information technology necessary for faith-based activities; ( o) social work activities.” Churches Section 7 “(1) A Church, religious denomination or religious community (hereinafter referred to as ‘ Church ’ ) shall be an autonomous organisation comprising natural persons sharing the same principles of faith, shall possess self-government, and shall operate primarily for the purpose of exercising religious activities. For the purposes of this Act, religious denominations and religious communities shall also be considered as Churches. (2) Natural persons confessing the same principles of faith, with full capacity to act and residing in Hungary, may establish a Church for the exercise of their religion. ... (4) The Churches recognised by Parliament are listed in the Appendix to this Act.” Section 8 “The State may enter into agreements with Churches which have substantial social support, preserve historical and cultural values and maintain pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural or sports institutions (hereinafter referred to as ‘ public - interest activities ’ ) in order to ensure their operation.” Section 9 “... (2) The State may take into account the actual social role of Churches and the public - interest activities performed by them, in enacting additional rules of law related to the social role of Churches and in maintaining relations with them.” Section 14 “(1) The representative of an association which primarily performs religious activities (hereinafter referred to as an ‘ association ’ ) shall be authorised to initiate the recognition of the represented association as a Church by submitting a document signed by a minimum of 1,000 individuals, applying the rules governing popular initiatives. (2) An association shall be recognised as a Church if ( a) it primarily performs religious activities; ( b) it has a confession of faith and rites containing the essence of its teachings; ( c) it has been operating internationally for at least one hundred years, or in an organised manner as an association in Hungary for at least twenty years, which includes operating as a Church registered under [the 1990 Church Act] prior to the entry into force of this Act; ( d) it has adopted a statute, an instrument of incorporation and internal ecclesiastical rules; ( e) it has elected or appointed administrative and representative bodies; ( f) its representatives declare that the activities of the organisation established by them are not contrary to the Fundamental Law, do not conflict with any rule of law and do not violate the rights and freedoms of others; ( g) the association has not been considered a threat to national security during the course of its operation; ( h) its teaching and activities do not violate the right to physical and psychological well-being, the protection of life or human dignity. (3) Based on the popular initiative, the parliamentary committee on religious affairs (hereinafter referred to as ‘ the committee ’ ) shall submit a bill to Parliament regarding the recognition of the association as a Church. If the conditions defined in subsection (2) are not fulfilled, the committee shall indicate this in connection with the bill. (4) At the request of the committee, the association shall certify that it fulfils the conditions defined in points ( a) to ( f) of subsection (2). The committee shall request the opinion of the President of the Hungarian Academy of Sciences regarding the fulfilment of the conditions defined in points ( a) to ( c) of subsection (2). (5) If Parliament does not support the recognition of an association as a Church in accordance with the bill referred to in subsection (3), the decision made in this regard shall be published in the form of a parliamentary resolution. No popular initiative aimed at securing recognition of the association as a Church may be initiated within a period of one year following the publication of this resolution.” Section 15 “The association in question shall qualify as a Church as of the day of entry into force of the amendment to this Act in respect of its registration.” Section 19 “... (3) In order to realise their goals, Churches shall be authorised to engage in activities which do not qualify as business or entrepreneurial activities, and shall also be authorised to engage in business or entrepreneurial activities besides their core activities. Furthermore, they shall be authorised to establish businesses and NGOs and to participate therein. (4) Churches ’ public - interest activities and institutions shall be entitled to budgetary funds to the same extent as State and local government institutions performing similar activities. In these Church institutions the conditions of employment shall conform to those in the public sector in respect of wages, working time and rest periods. (5) The central wage - policy measures applicable to employees of State and local government institutions shall apply to the employees of the Church institutions referred to in subsection (4), subject to the same conditions. (6) Churches may receive funding on a statutory basis from the subsidiary organs of central government, from programmes financed out of EU funds or on the basis of international agreements, by way of application or outside the system of applications, on the basis of a specific decision. ...” Section 20 “... (4) In addition to those activities listed in section 6, subsection (2), the following shall not qualify as business or entrepreneurial activities in the case of Churches: ( a) the operation of religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural and sports institutions, as well as ... activities to protect the environment; ( b) the use of holiday homes as a service to Church personnel; ( c) the production or sale of publications or objects of piety which are necessary for religious life; ( d) the partial exploitation of real estate used for Church purposes; ( e) the maintenance of cemeteries; ( f) the sale of non- material goods, objects ... serving exclusively religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural, sports or environmental protection activities, including the reimbursement of the cost of work clothes; ( g) the provision of services complementary to religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural, sports or environmental protection activities, or the not-for-profit use of equipment serving these activities; ( h) the production or sale of products, notes, textbooks, publications or studies linked to the performance of public duties taken over from the State or local government; ( i) the operation of pension institutions or pension funds set up for the self-support of Church personnel. (5) The revenues generated from activities listed in subsection (4) shall include, in particular, the following: ( a) payments, fees and reimbursements in respect of services; ( b) compensation, damages, penalties, fines and tax refunds connected to the activity; ( c) ... non-repayable funding, grants received in connection with the activity; and ( d) the portion of interest, dividends and yields paid by financial institutions and issuers on deposits and securities made or acquired using uncommitted funds, in proportion to the revenues generated by activities which do not qualify as business or entrepreneurial activities. (6) Churches may be granted tax benefits and other similar benefits.” Section 23 “Churches, and in particular Church rites and the undisturbed conduct of Church governance, as well as Church buildings, cemeteries and other holy places, shall enjoy enhanced protection under the law on regulatory offences and under criminal law.” Section 24 “(1) In teaching or educational institutions financed by the State or local government, Churches may provide religious and moral education according to the needs of students and their parents; in institutions of higher education Churches may carry out faith-based activities. ... The costs of religious and moral education shall be borne by the State, on the basis of a separate Act or of agreements concluded with the Churches. (2) Churches may perform pastoral services in the army, in prisons and in hospitals, or other special ministries as provided for by statute .” Section 33 “(1) The Minister shall, within thirty days of the entry into force of this Act, register the Churches listed in the Appendix to this Act and the internal ecclesiastical legal persons determined by them under section 11. (2 ) Churches listed in the Appendix and their internal ecclesiastical legal persons may operate as Churches and as internal ecclesiastical legal persons regardless of the date of their registration under subsection (1). ...” Section 34 “... (2) Until the expiry of Act no. C of 2011 on the right to freedom of conscience and religion and the legal status of Churches, denominations and religious communities, with the exception of the rules governing popular initiatives, Parliament shall, in the light of the provisions governing the recognition of Churches set out in Act no. C of 2011 ..., make decisions by 29 February 2012 in respect of the recognition of Churches submitting applications for recognition to the Minister in accordance with this Act, under the procedure set out in section 14, subsections (4) and (5). (3) The Minister shall publish a list of the Churches specified in subsection (2) above on the Ministry ’ s official website. (4) If Parliament refuses to recognise a Church in accordance with subsection (2), for the purposes of this Act and other relevant legislation that Church shall qualify as an organisation pursuant to subsection (1) as of 1 March 2012, and sections 35 to 37 shall apply to it, with the proviso that: ( a) recognition as a Church may proceed on the basis of a popular initiative launched up to one year after publication of the parliamentary resolution referred to in section 14, subsection (5); ( b) the procedural action defined in section 35, subsection (1), must be commenced by 30 April 2012 and the conditions set out in section 37, subsection (2), must be fulfilled by 31 August 2012; ( c) the date of 30 April shall be taken into account in applying section 35, subsection (3), point (b); ( d) the date of legal succession in accordance with section 36, subsection (1), shall be 1 March 2012; ( e) budgetary funding for ecclesiastical purposes may be granted to the Churches specified in subsection (2) up to 29 February 2012. (5) The organisation ( a) may initiate its registration as an association in accordance with section 35, and ( b) where it meets the requirements provided for in this Act, may initiate the recognition of the association as a Church in accordance with the provisions set out in Chapter III.” Section 35 “(1) The organisation shall declare its intention to continue or discontinue its activities by 29 February 2012, and where it intends to continue its activities it shall, in accordance with the rules concerning associations, initiate a change -of- registration procedure. In this connection section 37, subsection (1), section 38 and section 63, points ( a) and ( c), of Act no. CLXXXI of 2011 on the court registration of civil society organisations and related rules of procedure shall apply, with the proviso that the meeting at which the change of registration is decided shall be considered as the constituent assembly. (2) The requirements for the organisation to be registered as an association must be fulfilled by 30 June 2012 at the latest. However, if the organisation undertakes religious activities from 1 January 2012 within the same organisational framework defined in its internal ecclesiastical rules as in force on 31 December 2011, the court, in the course of the registration of the association and in connection with the requirements set out in section 62, subsection (4), point (b), of Act no. IV of 1959 on the Civil Code, shall refrain from assessing whether the instrument of incorporation of the organisation complies with the legal provisions relating to the establishment and competence of the supreme body, administrative body and representative body. Failure to meet the above deadline shall result in forfeiture of the right to register. ...” Section 37 “(1) With the exception of the cases defined in subsection (3), after the entry into force of this Act only Churches listed in the Appendix may be granted budgetary subsidies for ecclesiastical purposes. (2) For the purposes of Act no. CXXVI of 1996 on the use of a specified amount of personal income tax in accordance with the taxpayer ’ s instructions, the organisation shall be considered to be an association and shall be entitled to the 1% that can be donated to associations, provided that it complies with the conditions laid down by the laws concerning associations by 30 June 2012. (3) On the basis of an agreement, the State shall provide budgetary subsidies for the operation of the following institutions operated by the organisation on 31 December 2011: ( a) until 31 August 2012 for public education institutions; ( b) until 31 December 2012 for social institutions.” Section 38 “(1) While abiding by the agreements concluded with Churches engaged in public ‑ interest activities, the Government shall review these agreements and, if appropriate, shall initiate the conclusion of new agreements. (2) Until 31 December 2012, the Government may conclude agreements relating to the provision of budgetary funding with organisations performing public duties which do not qualify as Churches under this Act.” Section 50 “... (3) The following section 13 shall be added to the Church Funding Act: ‘ Section 13: An organisation under section 34, subsection (1), of the Church Funding Act shall be entitled, in 2012, to receive the complementary funding specified under section 4, subsection (3), provided it has been recognised as a Church by Parliament up to 20 May 2012. ’ ” Section 52 “Section 34 shall be replaced by the following provision: ‘ Section 34 (1): With the exception of the Churches listed in the Appendix and their independent organisations established for religious purposes, organisations registered in accordance with [the 1990 Church Act] and their organisations established for religious purposes (hereinafter jointly referred to as ‘ organisations ’ ) shall qualify as associations as of 1 January 2012. ... ’ ” 30. The 2011 Church Act was amended on several occasions, in particular on 1 August 2013. Following these amendments, the criteria to be met in order for an organisation performing religious activities to obtain “incorporated Church ” status remain similar to those introduced on 1 January 2012, with the following differences: if the organisation has been operating in Hungary, it has to prove a membership which equals at least 0.1 % of the national population in Hungary (a requirement not applied to organisations which have been operating internationally); moreover, it has to prove its intention and long-term ability to cooperate with the State to promote public-interest goals. The ability of an organisation to cooperate may be evidenced by its statute, the number of members it has, its previous activities and the accessibility of those activities to a large section of the population. 31. The procedure for recognition as an “incorporated Church ” was also amended. A request for recognition must be submitted to the Minister in charge of religious affairs (instead of Parliament). The Minister examines whether the organisation meets certain statutory criteria and adopts an administrative decision which is open to judicial review. The final decision is communicated to the parliamentary committee on religious affairs which, in turn, examines the organisation ’ s intention and ability to cooperate with the State as well as the conformity of its teachings and activities with others ’ rights to physical and psychological well-being, the protection of life and human dignity. Parliament ’ s Committee for National Security further examines whether the organisation has been considered a threat to national security. The representatives of the organisation are heard by the parliamentary committee on religious affairs. If, following examination by the committee, the organisation is found to meet all the statutory criteria, the committee submits a bill for the granting of “incorporated Church ” status. Otherwise, it submits a motion proposing the refusal of the request, which must contain due reasoning. Parliament then decides whether to adopt the bill or the motion for refusal. The lawfulness of a refusal may be challenged before the Constitutional Court within fifteen days. 32. The 2011 Church Act, as amended on 1 August 2013, provides, in its relevant parts, as follows: Religious activities and common rules on the status of religious communities Section 6 “(1) A religious community shall be a Church recognised by Parliament or an organisation performing religious activities. A Church recognised by Parliament shall be an incorporated Church. (2) A religious community shall be established and operate primarily for the purposes of religious activities. (3) Religious activities relate to a set of beliefs directed towards the transcendental which has a system of faith-based principles and whose teachings focus on existence as a whole, and which embraces the entire human personality and lays down specific codes of conduct. (4) The following shall not be considered as religious activities per se : ( a) political and lobbying activities; ( b) psychological and parapsychological activities; ( c) medical activities; ( d) business / entrepreneurial activities; ( e) pedagogical activities; ( f) educational activities; ( g) higher educational activities; ( h) health care activities; ( i) charitable activities; ( j) family, child or youth protection activities; ( k) cultural activities; ( l) sports activities; ( m) animal protection, environmental protection or nature conservation activities; ( n) information technology activities which go beyond the information technology necessary for faith-based activities; ( o) social work activities. (5) A religious community shall only perform religious activities which are neither contrary to the Fundamental Law nor unlawful and which do not violate the rights and freedoms of other communities.” Section 7 “A religious community shall be entitled to use, as a self-definition, the word ‘ Church ’ in its name and when referring to its activities whose content is based on its principles of faith. The name of an organisation performing religious activities shall not contain any reference to ‘ association ’ as a legal form.” Section 9 “(1) The Government may enter into agreements with religious communities which have substantial social support, preserve historical and cultural values ( either themselves or through their subsidiary institutions) and maintain pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural or sports institutions, in order to ensure their operation. ... ” Organisation performing religious activities Section 9/A “(1) An organisation performing religious activities shall be an association comprising natural persons confessing the same principles of faith and shall, according to its statute, operate for the purpose of exercising religious activities. (2) The rules governing the activities of associations shall apply accordingly to organisations performing religious activities, with the differences provided for in this Act.” Section 9/B “(1) The Budapest High Court shall have exclusive jurisdiction to register organisations performing religious activities. (2) On receiving a registration request, the High Court shall examine only whether ( a) the organisation ’ s representatives have declared that its establishment serves the purpose of exercising religious activities; ( b) the activity to be performed by the organisation does not violate section 6, subsections (4) and (5); ( c) the organisation ’ s founding was declared, and its statute adopted, by ten members at least; ( d) only natural persons are members of the organisation and the statute excludes any legal person from membership. (3) The registration request shall be rejected only if the organisation fails to meet the requirements enumerated under subsection (2), points (a) to (d), above. (4) The statute of organisations performing religious activities may regulate the following subjects in a manner which differs from the rules applying to associations: ( a) admittance to the organisation and exercise of membership rights; ( b) the persons, as well as their tasks and competences, who have a legal relationship with the organisation and are entitled to b. a adopt and oversee internal decisions concerning the organisation ’ s activity or b. b manage and represent the organisation.” (5) Organisations performing religious activities may merge only with other organisations performing religious activities.” Section 9/C “(1) The review of lawfulness exercised by the prosecutor ’ s office in respect of an organisation performing religious activities shall extend only to verifying whether the organisation ’ s activity conforms to section 6, subsections (4) and (5). If the organisation fails to meet those requirements even after a warning from the prosecutor ’ s office, the latter may initiate court proceedings against the organisation. (2) At the request of the prosecutor ’ s office the court may ( a) order the organisation to restore its activity to a lawful footing and dissolve it in the event of non-compliance; ( b) dissolve the organisation if its activity violates the Fundamental Law in the opinion of the Constitutional Court.” Ecclesiastical legal person ( Egyházi jogi személy ) Section 10 “The incorporated Churches and their internal ecclesiastical legal entities shall be ecclesiastical legal persons.” Section 11 “(1) An incorporated Church shall be an autonomous organisation possessing self ‑ government and comprising natural persons confessing the same principles of faith, on which Parliament confers special public - law status for the purpose of cooperation to promote public-interest goals. (2) The incorporated Church shall be a legal person. (3) Incorporated Churches shall have equal rights and obligations. (4) Incorporated Churches shall be enumerated in the Appendix to this Act.” Person in the service of a religious community Section 13 “(1) An ecclesiastic ( egyházi személy ) shall be a natural person who, according to the internal rules of an incorporated Church, exercises ecclesiastical ministry in the framework of a specific ecclesiastical, labour or other relationship. (2) Ecclesiastics shall be entitled to keep secret from the State authorities any personal information which they acquire during ecclesiastical service. (3) Ecclesiastics shall enjoy enhanced protection under the law on regulatory offences and under criminal law.” Section 13/A “(1) A professional minister of an organisation performing religious activities shall be a natural person who is in the service of the organisation and exercises his or her activity in the framework of a labour relationship. (2) Section 13(2) and (3) shall apply to the professional ministers of organisations performing religious activities.” Conditions for recognition as a Church Section 14 “(1) An organisation performing religious activities shall be recognised as a Church by Parliament if: ( a) it primarily performs religious activities; ( b) it has a confession of faith and rites containing the essence of its teachings; ( c) it has been operating c. a internationally for at least one hundred years or c. b in an organised manner as a religious community in Hungary for at least twenty years and its membership equals at least 0.1 % of the national population; ( d) it has adopted internal ecclesiastical rules; ( e) it has elected or appointed administrative and representative bodies; ( f) its representatives declare that the activities of the organisation established by them are not contrary to subsections (4) and (5) of section 6; ( g) its teaching and activities do not violate the right to physical and psychological well-being, the protection of life and human dignity; ( h) the association has not been considered a threat to national security during the course of its operation and; ( i) its intention and long-term ability to maintain cooperation to promote public ‑ interest goals is evidenced especially by its statute, the number of members it has, its previous activity in the areas enumerated in section 9(1) and the accessibility of those activities to a large section of the population.” Rules on the functioning of religious communities Section 19 “(1) Religious communities shall function according to their internal rules, principles of faith and rites. (2) Religious communities may participate in shaping social values. To this end, the community ( either itself or through an institution which it establishes for this purpose) may also exercise the activities defined in section 9(1) which are not statutorily reserved for the State itself or a State institution. ... (5) Religious communities may enter freely into civil - law relationships; they may establish businesses and NGOs and participate therein.” Section 19/A “(3) On the basis of statutory rules Churches may receive funding from the subsidiary organs of central government, from programmes financed out of EU funds or on the basis of international agreements, by way of application or outside the system of applications, on the basis of a specific decision. ... ” Section 19/C “Religious communities, Church buildings, cemeteries and other holy places shall enjoy enhanced protection under the law on regulatory offences and under criminal law, in particular to ensure the undisturbed performance of rites and operation according to internal rules.” Rules on the functioning of ecclesiastical legal persons Section 20 “(1) Ecclesiastical legal persons performing public - interest activities related to the areas enumerated in section 9(1) shall be eligible for budgetary funds to the same extent as State and local government institutions performing similar activities. (2) The conditions of employment within ecclesiastical legal persons performing the activities enumerated in section 9(1) shall conform to those in the public sector in respect of wages, working time and rest periods. The central wage - policy measures applicable to employees of State and local government institutions shall cover the employees of ecclesiastical legal persons, subject to the same conditions. (3) With a view to cooperation to promote public-interest goals, ecclesiastical legal persons may be granted tax benefits or other similar benefits.” Section 21 “(1) With a view to cooperation to promote public-interest goals, ecclesiastical legal persons may organise, according to statutory regulations, religious education in educational institutions maintained by the State, local government or local minority governments, as well as in higher educational institutions maintained by the State or a national minority government. ... (3) The costs of religious education ... shall be borne by the State, on the basis of statutory regulations or an agreement concluded with an incorporated Church .” Section 22 “(1) In order to realise their goals, ecclesiastical legal persons shall be authorised to engage in activities which do not qualify as business or entrepreneurial activities, and shall also be authorised to engage in business or entrepreneurial activities besides their core activities, even beyond the limits defined in section 19(5). (2) The following shall not qualify as business or entrepreneurial activities in the case of ecclesiastical legal persons: ( a) the operation of religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural and sports institutions, as well as ... activities to protect the environment; ( b) the use of holiday homes as a service to Church personnel; ( c) the production or sale of publications or objects of piety which are necessary for religious life; ( d) the partial exploitation of real estate used for Church purposes; ( e) the maintenance of cemeteries; ( f) the sale of non- material goods, objects ... serving exclusively religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural, sports or environmental protection activities, including the reimbursement of the cost of work clothes; ( g) the provision of services complementary to religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural, sports or environmental protection activities, or the not - for- profit use of equipment serving these activities; ( h) the production or sale of products, notes, textbooks, publications or studies linked to the performance of public duties taken over from the State or local government; ( i) the operation of pension institutions or pension funds set up for the self-support of Church personnel; ( j) permission for a third party to use the ecclesiastical person ’ s name, abbreviated name, commonly used denomination, emblem or logo. (3) The revenues generated from the activities listed in subsection (2) shall include, in particular, the following: ( a) payments, fees and reimbursement in respect of services; ( b) compensation, damages, penalties, fines and tax refunds connected to the activity; ( c) ... non-repayable funding, grants received in connection with the activity; and ( d) the portion of interest, dividends and yields paid by financial institutions and issuers on deposits and securities made or acquired using uncommitted funds, in proportion to the revenues generated by activities which do not qualify as business or entrepreneurial activities.” Section 24 “Incorporated Churches may perform pastoral services in the army, in prisons and in hospitals, or other special ministries as laid down in statutory rules.” 33. Act no. XXXII of 1991 on settling the ownership of former Church properties provides as follows: Preamble “ ... The party-State, which was based on the principle of an exclusively materialist and atheist outlook, restricted the confessional life and social role of Churches to a bare minimum by confiscating their assets and dissolving most of their organisations, and through other instruments of power representing a continuous abuse of rights. In a Hungary based on the rule of law Churches can again, freely and in an unrestricted manner, fulfil their societal role; however, they do not have the necessary financial means. Act no. IV of 1990 on Churches ... already made reference to the fact that Hungarian Churches, in addition to their confessional activities, fulfil important tasks in the life of the nation, notably through cultural, educational, social and health care activities and fostering national identity. However, it was not yet possible at that time to generate the material and financial assets necessary for these tasks. In order to remedy, at least in part, the serious infringements that occurred and to secure the financial and material conditions for Churches to be able to carry on with their activities, Parliament hereby enacts the following law with a view to settling the ownership of former Church properties:” Act no. CXXIV of 1997 on the financing of the religious and public ‑ interest activities of Churches (“the Church Funding Act”) provides as follows: Preamble “Recognising the Hungarian Churches ’ millennium-long work on behalf of the life and interests of the nation; Mindful of the importance of religious convictions in Hungarian society; Taking into account the fact that the Hungarian Churches were subjected to measures depriving them of their rights after 1945; Considering the requirements of separation of State and Church as well as the requirement for them to cooperate to promote community goals; Parliament hereby enacts the following law: ... ” Section 1 “This Act shall apply to incorporated Churches, religious denominations and religious communities ... within the meaning of the [2011 Church Act].” [2] Section 4 “(1) Incorporated Churches shall be entitled, under the detailed provisions of a separate Act, to 1% of the personal income tax of those individuals who donate their tax for that purpose. Incorporated Churches may make use of this amount according to their internal rules. (2) Beside the [above] amounts ..., incorporated Churches shall be entitled to further subsidies as provided for in subsections (3) and (4) below. (3) If the total amount of the subsidy to which the incorporated Churches are entitled under subsection (1) does not attain 0.9 % of the personal income tax declared in the relevant year (calculated by reference to the consolidated tax base and after deduction of the applicable tax reliefs), the actual amount of the subsidy to be transferred to the incorporated Churches shall be supplemented from the State budget to the above-mentioned extent. (4) Incorporated Churches shall be entitled to the subsidy in proportion to the number of individuals who donated 1% of their personal income tax to them.” Section 6 “(1) Incorporated Churches shall be entitled to further subsidies (hereinafter: ‘ complementary subsidies ’ ), based on the decision of the persons provided with public services to procure those services from institutions maintained by incorporated Churches. ... ” D. Case-law of the Constitutional Court 34. Decision no. 6/2013 (III. 1.) of the Constitutional Court contains the following passages: “[131] The Fundamental Law lays down the principle of separation (detachment) of Churches and State in connection with freedom of religion. Besides being one of the founding principles of the functioning of a secular State, it is also one of the guarantees of freedom of religion. [134] ... The Fundamental Law guarantees that ‘ religious communities ( in addition to other institutional forms proposed by the law on associations) may freely avail themselves of the legal status which national law refers to as that of a ‘ Church ’. By providing for this legal form, the State acknowledges the unique characteristics of Churches and enables them to find their place within the legal order ... ’ [141] ... Therefore, Parliament cannot decide, under the Fundamental Law, to abolish the special ‘ Church ’ legal form for religious communities. It would violate the Fundamental Law if religious communities could only function either as associations or as other legal entities whose establishment is open to any group of persons even without any religious context. The lack of a special legal form providing enhanced autonomy for the practice of freedom of religion would be unconstitutional. [143] 2.3. On issues of substance, the State relies on the self-definition of religions and religious communities. However, in accordance with freedom of religion and the right to practise a religion in community, it may define objective and reasonable conditions for recognition as a special legal entity, that is to say, a ‘ Church ’. In particular, such conditions may include a minimum number of members in order to submit a request for recognition, or a minimum length of time in operation. [146] 2.4. In view of the above considerations, the State may regulate the conditions for conferring legal personality on organisations and communities established in accordance with freedom of religion by means of rules which take into account the specific characteristics of the organisation or community concerned. Nevertheless, the Constitutional Court would point out that ... ‘ it would raise ... constitutionality issues if the legislature were to grant the possibility to become a legal person or to establish a specific legal entity for some organisations while arbitrarily excluding others in a comparable situation or making it disproportionately difficult for them to obtain such legal status ’ ... [152] The State enjoys a relatively wide margin of appreciation (within the limits imposed by the Fundamental Law) in defining public-interest goals. In general, the State is not obliged to cooperate on the achievement of targets defined by a Church or religious community if it has not otherwise undertaken to accomplish tasks in that sphere. [153] The State also enjoys a wide margin of appreciation in granting financial subsidies, benefits and exemptions to Churches, as the State has the power to enforce the principle of balanced, transparent and sustainable budget management ... according to Article N of the Fundamental Law. However, the Constitutional Court would stress that in allocating such subsidies, the State has to pay particular attention to the specific requirements imposed by freedom of religion and must ensure that none of the Churches is discriminated against in comparison with similarly situated Churches and organisations [ see Articles VII and XV of the Fundamental Law]. [155] There is no constitutional obligation to provide every Church with similar entitlements. Nor is the State obliged to cooperate equally with every Church. Practical differences in securing rights related to freedom of religion remain constitutional in so far as they are not the result of a discriminatory practice. The State ’ s neutrality has to be maintained, in terms of executing public-interest tasks undertaken by the State, the allocation of subsidies to Churches and mandatory societal cooperation between the State and the Churches. [156] ... [T]he State is constitutionally required to ensure that religious communities have the opportunity to acquire special Church status (allowing them to function independently), and other entitlements conferred on Churches, in a manner consistent with freedom of religion and the specific entitlement in question, under objective and reasonable conditions, in fair proceedings meeting the requirements of Articles XXIV and XXVIII of the Fundamental Law, and subject to a remedy. ... [158 ] ... The Constitutional Court has reached the conclusion that, although there are similarities in the regulation of the rights of incorporated Churches and religious associations, the 2011 Church Act also contains several important differences. A non ‑ exhaustive list of them follows. [159] Until [20 December 2011,] ... the rules providing enhanced autonomy for incorporated Churches and the right of ecclesiastics to keep secret from the State authorities any personal information acquired during religious ministry also applied accordingly to the religious activity of those religious associations which unsuccessfully applied to the Minister for Church status. ... However, under the 2011 Church Act religious associations which subsequently applied unsuccessfully for Church status are no longer entitled to these guarantees. [160] Since the entry into force of the 2011 Church Act budgetary subsidies may be granted only to incorporated Churches (apart from some subsidies which may be extended for one year pursuant to specific agreements). [161] Under Act no. CXXVI of 1997 on the use of a specified amount of personal income tax in accordance with the taxpayer ’ s instructions, religious associations are considered as associations in accordance with the 2011 Church Act. As a consequence, they may be entitled to the portion of personal income tax which may be donated to associations. ... [T]hese associations are also considered to be beneficiaries, but not of religious subsidies ... [162] Incorporated Churches may use donations to provide their ministers performing religious services and rites ... with an income which is exempt from personal income tax. ... [163] The Church Funding Act stipulates that the archives, libraries and museums of [incorporated] Churches are entitled to ... a subsidy on a similar basis to the institutions maintained by the State. [164] The public - interest activities and institutions of [incorporated] Churches are entitled to budgetary funds to the same extent as State and local government institutions performing similar activities. In these Church institutions the conditions of employment must conform to those in the public sector in respect of wages, working time and rest periods. The central wage - policy measures applicable to employees of State and local government institutions also apply to the employees of Church institutions, subject to the same conditions. ... [165] The State authorities are prohibited from examining the religion-related revenues of the [incorporated] Churches and the use of those revenues. ... [166] The costs of religious and moral education are borne by the State, on the basis of a separate Act or of agreements concluded with the [incorporated] Churches. [167] In the light of the above, the Constitutional Court holds that the legislation in force confers on incorporated Churches additional rights which place them in a substantially advantageous situation compared with religious associations and which assist their religious and financial functioning and thus promote their freedom of religion. ... [181] The Church status of an organisation does not constitute an ‘ acquired right ’ protected by the Fundamental Law, in the sense that it may be reviewed and possibly withdrawn if it subsequently transpires that the conditions for conferring it were not met. ... [I]t is a constitutional requirement that, in similar fashion to proceedings for the acquisition of Church status, the review of such status must also be fair and subject to a remedy. [196] When deciding to confer Church status on religious communities which request it, Parliament does not legislate but applies the law (as an ‘ authority ’ in the sense of Article XXIV of the Fundamental Law), since it is deciding on the applicant ’ s rights in a particular case. ... [200] The Constitutional Court has previously established that the risk of some kind of political assessment being made in connection with the recognition of Churches cannot be excluded ... [212] For the above reasons, the Constitutional Court holds that section 14, subsections (1) and (3) to (5), as well as section 34, subsections (2) and (4), of the 2011 Church Act, do not meet the requirements flowing from the right to a fair trial and the right to a remedy and that, as a consequence, the law gives rise to a violation of freedom of religion and of the prohibition of discrimination. Therefore, the above ‑ mentioned provisions violate the Fundamental Law. [215] ... [F]or that reason, the Constitutional Court orders the retroactive annulment of section 14, subsections (3) to (5), of the 2011 Church Act as of 1 January 2012, when the regulation entered into force. [222] As a general rule, Churches registered under [the 1990 Church Act] and their subsidiary autonomous organisations established for religious aims were converted ex lege into associations by section 34(1) of the 2011 Church Act (in force between 1 January 2012 and 31 August 2012). [224] ... [The Constitutional Court] declares section 34(1) (in force between 1 January 2012 and 31 August 2012) of the 2011 Church Act to be inapplicable with retroactive effect in respect of the applicants .” 35. Section 34(1) of the 2011 Church Act stipulated that, as of 1 January 2012, every Church and religious organisation was to be considered as an association, with the exception of those “defined in the Appendix to the Act” by Parliament. Although only this arbitrary recognition and enumeration of privileged Churches was found to be unconstitutional, the Constitutional Court decided to annul the entire subsection (1) of section 34, and not only the expression “defined in the Appendix”, for the sake of legal certainty. IV. RELEVANT INTERNATIONAL MATERIALS 39. In General Comment 22 (U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994)), the United Nations Human Rights Committee stated, in so far as relevant, as follows: “2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘ belief ’ and ‘ religion ’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community. ... 4. ... [T]he practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications. ...” 40. The European Commission for Democracy through Law (“ the Venice Commission”), in its Opinion on the 2011 Church Act (adopted by the Venice Commission at its 90th Plenary Session (Venice, 16-1 7 March 2012)), stated as follows (footnotes omitted) : “ ... 18. The Venice Commission would like to recall that the right to freedom of religion and conscience covers more elements than merely granting privileges, state subsidies and tax benefits to recognised Churches. Freedom of thought, conscience and religion is one of the foundations of a ‘ democracy society ’. It is so important that it cannot be derogated at all and cannot be restricted on national security grounds. 19. The freedom of thought, conscience and religion (Article 9 ECHR and 18 ICCPR), is a complex right, which is closely linked to and must be interpreted in connection with the freedom of association (Article 11 ECHR and 22 ICCPR), and the right to non-discrimination (Article 14 ECHR and 26 ICCPR). ... 28. According to Section 7.1 of the Act ‘ A Church, denomination or religious community (hereinafter referred to as ‘ Church ’ ) shall be an autonomous organisation recognised by the National Assembly consisting of natural persons sharing the same principles of faith; shall possess self-government and shall operate primarily for the purpose of practising religious activities. ’ ... 32. Thus, the Venice Commission deems the obligation in the Act to obtain recognition by the Hungarian Parliament as a condition to establish a Church as a restriction of the freedom of religion. 33. ... In the opinion of the Venice Commission, whether an obligation to have prior recognition of a two-third majority of the Hungarian Parliament in order to establish a Church in Hungary may be justified in the light of international standards is questionable. ... 39. The Venice Commission has already stated in another context, that reasonable access to a legal entity status with suitable flexibility to accommodate the differing organisational forms of different communities is a core element of freedom to manifest one ’ s religion. 40. Equally important, is that, if organised as such, an entity must be able ‘ to exercise the full range of religious activities and activities normally exercised by registered non-governmental legal entities ’. ... 52. However, [the membership] condition may become an obstacle for small religious groups to be recognised. The difficulty arises primarily for religious groups that are organised as a matter of theology not as an extended Church, but in individual congregations. Some of these congregations may be relatively small, so that having 1,000 individuals who could sign the necessary document is difficult. ... 53. Although the Act does not explicitly require that only members of a religious community sign the document, it is clear that this condition constitutes an obstacle for small religious groups benefiting from the protection afforded by the Act. 54. With regard to membership requirements for registration purposes as such, the Venice Commission, on several occasions, has encouraged limited membership requirements. It has also, along with the Parliamentary Assembly of the Council of Europe ’ s recommendations, called for considering equalising the minimum number of founders of religious organisations to those of any public organisations. 55. The requirement under consideration aims to only benefit from the protection afforded by the Act and does not concern the registration of religious groups itself. A minimum of 1,000 signatures out of a population of 10 Million is not excessive. The Austrian Constitutional Court, for instance, found that a higher threshold concerning memberships was not too high in the light of freedom of religion, and even accepted it as an admissible restriction under Article 9 ECHR. 56. To the extent that the signature requirement does not deprive religious groups from access to legal personality as such, the Venice Commission believes that it may not be interpreted as being in breach of Article 9 ECHR. ... 57. Section 14.2 of the Act imposes a duration requirement of ‘ at least 100 years internationally or in an organised manner as an association in Hungary for at least 20 years ’. ... 64. It is clear to the Venice Commission that the general requirement that an association must have existed internationally for at least 100 years, or for at least 20 years in Hungary, is excessive, both with regard to the recognition of legal personality, and with regard to the other privileges granted to Churches. This is hardly compatible with Articles 9 and 14 ECHR. Consequently, the Venice Commission recommends revising the duration requirement in accordance with the recent benchmark judgment of the European Court of Human Rights. ... 70. The Venice Commission recommends deleting reference to national security in Section 14.2 and specifying with greater precision which particular law an association should comply with in order to satisfy recognition requirements. ... 72. The Venice Commission is worried specifically about the absence in the Act of procedural guarantees for a neutral and impartial application of the provisions pertaining to the recognition of Churches. ... 74. According to the latest information at the disposal of the rapporteurs, Parliament adopted a Bill of Recognition on 29 February 2012, with 32 recognized Churches. It is entirely unclear to the rapporteurs and to the outside world, how and on which criteria and materials the Parliamentary Committee and Members of Parliament were able to discuss this list of 32 Churches, to settle the delicate questions involved in the definition of religious activities and Churches supplied in the Act, within a few days, without falling under the influence of popular prejudice. .... 76. The foregoing leads to the conclusion that the recognition or de-recognition of a Religious community (organisation) remains fully in the hands of Parliament, which inevitably tends to be more or less based on political considerations. Not only because Parliament as such is hardly able to perform detailed studies related to the interpretation of the definitions contained in the Act, but also because this procedure does not offer sufficient guarantees for a neutral and impartial application of the Act. Moreover, it can reasonably be expected that the composition of Parliament would vary, i.e. change after each election, which may result in new Churches being recognised, and old ones de-recognised at will, with potentially pernicious effects on legal security and the self-confidence of religious communities. 77. It is obvious from the first implementation of the Act, that the criteria that have been used are unclear, and moreover that the procedure is absolutely not transparent. Motives of the decisions of the Hungarian Parliament are not public and not grounded. The recognition is taken by a Parliamentary Committee in the form of a law (in case of a positive decision) or a resolution (in case of a negative decision). This cannot be viewed as complying with the standards of due process of law. ... 90. The deprivation of the legal status of Churches has to be considered as a limitation of the freedom of religion, which has to be justified in the light of the strict limitation clauses provided for in International instruments. The Venice Commission doubts that depriving Churches of the legal status they enjoyed sometimes already for many years can be seen as ‘ pressing social need ’ and ‘ proportionate to the objective pursued ’ in the sense of International standards, without providing reasons that can justify this deprivation. 91. It is also not clear to the Venice Commission that this deprivation can be considered ‘ to be necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others ’ (Article 9.2 ECHR), or ‘ to be necessary to protect public safety, order, health, or morals or fundamental rights and freedoms of others ’ (Article 18.3 ICCPR). 92. The Venice Commission recommends redrafting the Act in order to avoid a de ‑ registration process and provisions operating retroactively unless specific reasons can justify it. It also recommends deleting the provision on forfeiture, which constitutes an undue limitation to the right to access to legal-entity status. ... 103. Finally, the deprivation of the legal status of these Churches and of the rights and privileges related to that status implies moreover that Churches are not treated on an equal basis. Unless there is an ‘ objective and reasonable justification ’ for it, this unequal treatment has to be considered discriminatory under international standards.” 41. The Venice Commission ’ s Opinion on the Fourth Amendment to the Fundamental Law of Hungary (adopted by the Venice Commission at its 95th Plenary Session (Venice, 14-15 June 2013)) contains the following passages (footnotes omitted) : “32. While the original version of Article VII of the Fundamental Law had been found in line with Article 9 ECHR in the Opinion on the new Constitution of Hungary, it is the procedure of parliamentary recognition of Churches that has been raised to the level of constitutional law in Article VII.2. The Commission had criticised this procedure in its Opinion on Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of Churches, denominations and religious communities of Hungary ... 33. In the Background Document, the Hungarian Government insists on the fact that parliamentary recognition of Churches does not prevent other religious communities from freely practising their religions or other religious convictions as Churches in a theological sense in the legal form of an ‘ organisation engaged in religious activities ’. 34. In the Commission ’ s view, this statement leaves doubts concerning its scope. It must be kept in mind that religious organisations are not only protected by the Convention when they conduct religious activities in a narrow sense. Article 9.1 ECHR includes the right to practise the religion in worship, teaching, practice and observance. According to the Convention, religious organisations have to be protected, independently of their recognition by the Hungarian Parliament, not only when they engage in religious activity sensu stricto, but also when they, e.g., engage in community work, provided it has – according to settled case law – ‘ some real connection with the belief ’. Article 9 in conjunction with Article 14 ECHR obliges the ‘ State [...] to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom ’. 35. The Background Document does not address the issue of an appeal against non ‑ recognition. The amended Article VII.2 refers to a remedy against the incorrect application of the recognition criteria: ‘ The provisions of cardinal Acts concerning the recognition of Churches may be the subject of a constitutional complaint. ’ During the meeting in Budapest, the delegation of the Venice Commission was informed that such a remedy would be introduced, but that it would be limited to the control of the recognition procedure in Parliament. It seems that such a Bill is currently being discussed in the Hungarian Parliament but was not submitted to the Venice Commission for an opinion. A merely procedural remedy is, however, clearly insufficient in view of the requirement of Article 13, taken together with Article 9 ECHR. Article VII.2 of the Fundamental Law provides substantive criteria and a review of the procedure applied does not allow for a verification of whether these criteria were followed by Parliament. 36. The Fourth Amendment to the Fundamental Law confirms that Parliament, with a two-thirds majority, will be competent to decide on the recognition of Churches. In addition, the new criterion ‘ suitability for cooperation to promote community goals ’ lacks precision and leaves too much discretion to Parliament which can use it to favour some religions. Without precise criteria and without at least a legal remedy in case the application to be recognised as a Church is rejected on a discriminatory basis, the Venice Commission finds that there is no sufficient basis in domestic law for an effective remedy within the meaning of Article 13 ECHR.” 42. In its 2004 Guidelines for Review of Legislation Pertaining to Religion and Belief (adopted by the Venice Commission at its 59th Plenary Session, (Venice, 18-19 June 2004)), the Venice Commission stated: “... III .B.3. Equality and non-discrimination. States are obligated to respect and to ensure to all individuals subject to their jurisdiction the right to freedom of religion or belief without distinction of any kind, such as race, colour, sex, language, religion or belief, political or other opinion, national or other origin, property, birth or other status. Legislation should be reviewed to assure that any differentiations among religions are justified by genuine objective factors and that the risk of prejudicial treatment is minimized or better, totally eliminated. Legislation that acknowledges historical differences in the role that different religions have played in a particular country ’ s history are permissible so long as they are not used as a justification for discrimination. ... III .F.1. ... Religious association laws that govern acquisition of legal personality through registration, incorporation, and the like are particularly significant for religious organisations. The following are some of the major problem areas that should be addressed: ... – High minimum membership requirements should not be allowed with respect to obtaining legal personality. – It is not appropriate to require lengthy existence in the State before registration is permitted. – Other excessively burdensome constraints or time delays prior to obtaining legal personality should be questioned. – Provisions that grant excessive governmental discretion in giving approvals should not be allowed; official discretion in limiting religious freedom, whether as a result of vague provisions or otherwise, should be carefully limited. – Intervention in internal religious affairs by engaging in substantive review of ecclesiastical structures, imposing bureaucratic review or restraints with respect to religious appointments, and the like, should not be allowed. ... – Provisions that operate retroactively or that fail to protect vested interests (for example, by requiring re-registration of religious entities under new criteria) should be questioned. – Adequate transition rules should be provided when new rules are introduced. – Consistent with principles of autonomy, the State should not decide that any particular religious group should be subordinate to another religious group or that religions should be structured on a hierarchical pattern (a registered religious entity should not have ‘ veto ’ power over the registration of any other religious entity).” THE LAW I. JOINDER OF THE APPLICATIONS 43. Given that the applications raise the same issue in essence, the Court decides to join them in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATIONS OF ARTICLES 9 AND 11 OF THE CONVENTION 44. The applicants complained under Article 11 – read in the light of Article 9 – that the deregistration and discretionary re-registration of Churches amounted to a violation of their right to freedom of religion and their right to freedom of association. 45. The Court observes that in a recent case it examined a substantially similar complaint, concerning the refusal to re-register a religious organisation, from the standpoint of Article 11 of the Convention read in the light of Article 9 (see Moscow Branch of the Salvation Army v. Russia, no. 72881/01, §§ 74 - 75, ECHR 2006 ‑ XI ). The Court finds it appropriate to apply the same approach in the present case. 46. Article 9 provides as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Article 11 provides as follows: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others...” 47. The Government contested that argument. A. Admissibility 48. The Government submitted several pleas for the applications to be declared inadmissible. The applicants contested these arguments. 49. In particular, the Government argued that the applicants had not pursued all available domestic remedies. Some of them had not applied for parliamentary recognition or initiated a popular initiative ( népi kezdeményezés ) to the same end. It was true that the Constitutional Court had found this remedy to be unconstitutional in the light of the principles articulated in the Court ’ s case-law on Article 6 of the Convention; however, in the Government ’ s view, that consideration was not sufficient to exempt the applicants concerned from attempting this remedy, which had been successful in eighteen other cases. Moreover, the Government noted that fourteen of the applicants had pursued successful constitutional complaints challenging the 2011 Church Act, culminating in decision no. 6/2013 (III. 1.) of the Constitutional Court (see paragraphs 34 and 35 above). Therefore, those applicants which had not done so had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. 50. The Court notes that the Constitutional Court annulled the original form of the impugned legislation with retrospective effect. This resulted in a situation in which the applicant communities regained the formal status of Churches. However, with regard to the ability of Churches to receive donations and subsidies, an aspect of crucial importance from the perspective of the performance of any societal functions they may have, the grievance has not been redressed. It follows that the constitutional complaint was not capable of entirely remedying the applicants ’ grievance, whether or not they actually availed themselves of this legal avenue. Consequently, the applications cannot be rejected for non-exhaustion of this remedy. 51. Moreover, in so far as those applicants which did not meet the statutory requirements are concerned, a request for parliamentary recognition, obviously futile, cannot be regarded as an effective remedy to be exhausted in the circumstances. In any case, the question as to whether the parliamentary procedure for recognition is a legal avenue capable of providing redress for the alleged violation is closely linked to the merits of the applications and should be examined jointly with the merits. 52. The Government also requested the Court to dismiss application no. 41463/12 on the ground that it was incompatible ratione personae with the provisions of the Convention, since the applicant, the European Union for Progressive Judaism, an entity with its registered office in London, had never been “within the jurisdiction of Hungary” for the purposes of Article 1 of the Convention (that is, it had never been registered as a Church in Hungary and never received any State subsidies in that country). The Court notes that this applicant ’ s legal status was not affected by the entry into force of the 2011 Church Act and that it is free to continue to exercise its right to freedom of religion under the same legal conditions as before. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention. 53. The Government also requested the Court to dismiss the applications as being incompatible ratione personae with the provisions of the Convention in respect of those applicants which had availed themselves of a constitutional complaint. They could no longer be regarded as victims of a violation of their rights under the Convention, since the Constitutional Court had repealed the provisions affecting the applicants ’ legal status (see paragraphs 17, 18, 34 and 35 above). The Court notes that, notwithstanding the decision of the Constitutional Court, which declared the conversion of the existing Churches into associations to be unconstitutional as of 1 January 2012, it has not been demonstrated that the applicants have been afforded adequate redress. It further reiterates in this connection that, even in the absence of prejudice and damage, a religious association may claim to be a “victim” when the refusal of re-registration has directly affected its legal position (see Moscow Branch of the Salvation Army, cited above, §§ 64-65). The Court considers that this approach is likewise applicable to the present situation pertaining to the actual deregistration of the applicants. Consequently, the Court is satisfied that these applicants have retained their victim status and that the applications cannot be rejected as being incompatible ratione personae in their regard. 54. The Government further requested that applications nos. 70945/11, 23611/12 and 41553/12 be declared inadmissible under Article 35 § 3 (a) of the Convention in respect of those applicants which had abused the right of individual petition by not submitting to the domestic courts any declaration of intention to continue their religious activities. The Court considers that the submission of a declaration of intention to the judicial authorities was not apt to prevent or remedy the alleged violation of the applicants ’ religious freedom, in that such declarations had, in the circumstances, no prospect of successfully restoring the applicants ’ original status. The failure of the applicants concerned to lodge such a declaration cannot be interpreted as an abuse of the right of individual petition. 55. The Government also contended that the applications were inadmissible ratione materiae with the provisions of the Convention, since the applicants ’ legal capacity had remained unaffected and they could continue their religious activities as associations despite the loss of their Church status. The Court observes that the subject matter of the case is not the applicants ’ legal capacity, but rather their recognition as Churches entitled to the relevant privileges. This issue falls within the scope of Articles 9 and 11 of the Convention. The autonomous existence of the applicant religious communities, and hence the collective exercise of religion, was undeniably affected by the new system of registration (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 114, ECHR 2001 ‑ XII, and Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 61, 31 July 2008). Therefore, it cannot be argued that the applications are incompatible ratione materiae with the provisions of the Convention. 56. Furthermore, the Court considers that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds, leaving aside the issue of non-exhaustion of domestic remedies (see paragraph 51 above). They must therefore be declared admissible, with the exception of application no. 41463/12. B. Merits 1. The parties ’ submissions ( a ) The Government 57. The Government submitted that the acts and events complained of did not constitute interference with the applicants ’ right to freedom of religion and their right to freedom of association. 58. Firstly, they noted that recognition as a Church under the 2011 Church Act did not affect the various rights associated with freedom of religion, namely the right to freedom of conscience and religion, the right to manifest one ’ s religion in community with others, freedom from discrimination on grounds of religion or belief, the right of parents to ensure education in conformity with their own convictions, the right to freedom of religion in education, social care and child care and in penal institutions, the freedom to impart religious beliefs through the media, and the protection of personal data concerning one ’ s religion. Contrary to the applicants ’ allegations, these rights, which were essential elements of freedom of religion, were not reserved for recognised Churches and their members. 59. Secondly, the Government submitted that, in contrast to other cases previously examined by the Court, notably Moscow Branch of the Salvation Army (cited above, §§ 96-97), the legal personality of the applicant communities was not at stake in the present applications. The applicants did not dispute the fact that they had not been deprived of their legal personality. They had not been dissolved and had retained the full capacity of legal entities. Their legal personality had been converted by law into another form without any period of interruption. Therefore, there had been no interference with the applicants ’ rights under Articles 9 and 11 in this respect either. 60. The Government further maintained that freedom to manifest one ’ s religion or beliefs under Article 9 did not confer on the applicant communities or their members any entitlement to secure additional funding from the State budget. Nor did it entail a right to receive the State subsidies that were due to Churches as such. Therefore, the loss of such subsidies could not be regarded as interference with the applicants ’ rights under Article 9 of the Convention. 61. The Government also submitted that, even if the 2011 Church Act complained of could be regarded as interference, it was prescribed by a law adopted by a two-thirds majority of the members of parliament. The applicants ’ argument that the 2011 Church Act was invalid under public law had not been upheld by the Constitutional Court. Those provisions of the 2011 Church Act which had been found to be unconstitutional did not affect the applicants ’ situation, while other provisions complained of by the applicants had not been declared unconstitutional. 62. Moreover, the alleged interference had pursued the legitimate aim of protecting public order and the rights and freedoms of others. After the entry into force of Act no. CXXVI of 1996 on the use of a specified amount of personal income tax in accordance with the taxpayer ’ s instructions and the 1997 Vatican Treaty regulating State financing of Church activities, the 1990 Church Act had given rise to unexpected abuses which could not be prevented in the legal context created by the 1989 Constitution. The new Act had been enacted in order to put an end to the so-called “ Church business”, in which Churches were established for the sole purpose of obtaining State subsidies for maintaining institutions providing social care or education, or even for personal gain, without conducting any genuine religious activities. By the end of 2011 there were, absurdly, 406 Churches registered in Hungary. In the light of the dwindling budgetary resources of the State and a parallel decrease in the resources available to organisations carrying out genuine religious activities, there had been a pressing social need to put an end to the abuse of Church subsidies. 63. Furthermore, the ongoing reform of the general system of financing social and educational institutions had also required changes to the system of State financing of such institutions operated by religious communities. Accordingly, there had been a pressing social need to amend the rules on the registration of Churches. 64. While retaining the principle that the State had to refrain from interfering with religious communities ’ self-definition in theological terms, the 2011 Church Act had defined the notion of religious activities for the purposes of the recognition of Churches as participants in the system of State- Church relations from an exclusively legal perspective. The Hungarian legislature had introduced a two-tier system of legal - entity status for religious communities similar to the model prevailing in a number of European States. Self-defined religious communities were free to operate as associations in accordance with Articles 9 and 11 of the Convention, while those religious communities which wished to establish a special relationship with the State and share the latter ’ s social responsibilities were expected to undergo an assessment of the nature of their activities by the authorities. 65. The Government argued that their approach was in conformity with the case-law of the Convention, notably in cases where the Court had relied on the position of the domestic authorities in defining “religion” for the purposes of registration ( they referred to Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 79, ECHR 2009). Therefore, the definition of religious activities by the 2011 Church Act and the assessment of the religious nature of an organisation by the State authorities were not contrary to Article 9 of the Convention. The 2011 Church Act complied with the requirements of neutrality and impartiality since it was not based on the specific characteristics of one particular religion and was apt to ensure the recognition of a number of Churches representing a wide range of religions and religious beliefs. 66. Prior registration as a Church in Hungary should not be regarded as decisive for the recognition of the religious nature of an organisation by the authorities, since registration as a Church under the 1990 Church Act had been based exclusively on the self-definition of the founders of the organisation, without any substantive assessment by the authorities. Such assessment had been introduced only by the 2011 Church Act, with the aim of preventing abuses resulting from this excessive deference to self ‑ definition. The Constitutional Court, in decision no. 6/2013 (III. 1.), cited examples where the judicial authorities competent in matters of Church registration under the 1990 Church Act had carried out a review of the religious nature of the activities covered by the statutes of the self-defined Churches requesting registration; however, this review had not been systematic and there had been no legal definition of religion and religious activities; therefore, there had been divergent judicial practice in this field. It was only this decision of the Constitutional Court that had made clear that, contrary to the applicants ’ allegations, the State authorities were not prohibited from verifying whether the stated beliefs and actual practices of a prospective or existing Church were genuinely of a religious nature. On the other hand, the Constitutional Court had found that further procedural guarantees should be attached to the exercise of that power by the State authorities. 67. The Government asserted that, in spite of the findings of the Constitutional Court as to the deficiencies in the procedural guarantees, the substantive assessment of the religious nature of an organisation ’ s activities was carried out neutrally and impartially under the 2011 Church Act. The legislature had originally intended to obtain an impartial opinion from an independent institution, the Hungarian Academy of Sciences, along the lines of the procedure for recognition of national minorities. When the Academy had refused to provide the decision-makers with its expertise in the relevant fields, the parliamentary committee on religious affairs had decided to seek guidance from other independent and reliable experts, and based its decision as to whether the teachings of a candidate Church were of a religious nature on whether or not it enjoyed international recognition. Having regard to the fact that the Court also referred to the European consensus as a guiding principle in defining religion, this approach by the Hungarian authorities could not be regarded as arbitrary or as falling outside their margin of appreciation. 68. As to the proportionality of the measures applied to achieve the above aims, the Government were of the opinion that the method of “re ‑ registration” provided for by the 2011 Church Act was the least restrictive measure possible and therefore proportionate to the aim pursued. It did not place a disproportionate burden on religious organisations: they were required only to submit a simple declaration of intention to continue their religious activities and to make some minor adjustments to their statutes in order to retain their legal personality. They also remained entitled to reclaim their status as Churches by following a simple procedure for recognition by Parliament. ( b ) The applicants 69. The applicants submitted that the loss of their proper Church status as a result of the 2011 Church Act had constituted interference with their freedom of religion. The proper functioning of religious communities necessitated the enjoyment of a specific and appropriate legal status, that is, Church status in the legal sense. In Hungary, religious communities had had a reasonable opportunity to be registered as Churches since 1990, and the applicants had indeed enjoyed that status. The fact that on 1 January 2012 the vast majority of Churches (including theirs ) had lost their proper Church status and had been forced to convert into ordinary civil associations or else cease to exist legally had constituted in itself interference with their freedom of religion, especially since the loss of Church status had deprived them of privileges which had facilitated their religious activities. The fact that those privileges were guaranteed henceforth only to Churches recognised by Parliament had placed them in a situation which was substantially disadvantageous vis-à-vis those Churches. 70. The applicants claimed that the right to freedom of religion encompassed the expectation that members would be allowed to associate freely without arbitrary State intervention. Therefore, the State was prohibited from regulating State- Church relationships arbitrarily; any interference in that sphere had to be prescribed by law, pursue a legitimate aim and be necessary in a democratic society. The requirements relating to the registration of Churches had to be objective and reasonable, because in this matter the State was required to remain neutral and impartial. Consequently, if a religious community met the legal requirements it had to be entitled to be registered as a Church, and the registration procedure had to offer guarantees of fairness. 71. However, the conditions and procedure governing their re ‑ registration as Churches had not only become stricter in comparison to the system under the 1990 Church Act, but had also become unreasonably burdensome and unfair, allowing Parliament to thwart their attempts at re ‑ registration arbitrarily, on the basis of political considerations. 72. As to the condition requiring an established existence over a long period, the applicants conceded that it was objective but nonetheless argued that this criterion was unreasonable. They pointed out that the communist regime had ended little more than twenty years previously in Hungary. Prior to that, it had hardly been possible for new religious movements to form and exist in the country. Consequently, virtually all new religious movements were excluded from the advantages of becoming a “ Church ”, in breach of Article 9. 73. In addition, the 2011 Church Act included less objective criteria as well, notably the requirement that the operation of the religious community should not pose any threat to national security and that its principles should not violate the right to health, the protection of life or human dignity. The applicants ’ re-registration requests had been dismissed although there had been no evidence that they posed any threat to the State or public order. 74. In view of the above, the applicants emphasised that, under the 2011 Church Act, a religious community could be denied registration even if it met the applicable objective criteria, a situation which disclosed arbitrariness. 2. The Court ’ s assessment ( a ) General principles 75. The Court reiterates that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. While religious freedom is primarily a matter of individual conscience, it also implies freedom to “manifest [one ’ s] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999 - I). 76. The Court does not deem it necessary to decide in abstracto whether acts of formal registration of religious communities constitute interference with the rights protected by Article 9 of the Convention. However, it emphasises that the State has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs (see Metropolitan Church of Bessarabia, cited above, § 116, and Religionsgemeinschaft der Zeugen Jehovas, cited above, § 97). Facts demonstrating a failure by the authorities to remain neutral in the exercise of their powers in this domain must lead to the conclusion that the State interfered with the believers ’ freedom to manifest their religion within the meaning of Article 9 of the Convention. The Court reiterates that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § § 77 ‑ 78, ECHR 2000 - XI ). Indeed, the State ’ s duty of neutrality and impartiality, as defined in the Court ’ s case-law, is incompatible with any power on the State ’ s part to assess the legitimacy of religious beliefs (see Metropolitan Church of Bessarabia and Others, cited above, § 123). 77. In this context Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. The Court reiterates its findings in this respect in Hasan and Chaush (cited above, § 62): “The Court recalls that religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin. Religious ceremonies have their meaning and sacred value for the believers if they have been conducted by ministers empowered for that purpose in compliance with these rules. The personality of the religious ministers is undoubtedly of importance to every member of the community. Participation in the life of the community is thus a manifestation of one ’ s religion, protected by Article 9 of the Convention. Where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. Seen in this perspective, the believers ’ right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual ’ s freedom of religion would become vulnerable .” 78. The Court further reiterates that the ability to establish a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of freedom of association, without which that right would be deprived of any meaning. The Court has consistently held the view that a refusal by the domestic authorities to grant legal-entity status to an association of individuals amounts to interference with the applicants ’ exercise of their right to freedom of association (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 52 et passim, ECHR 2004 ‑ I, and Sidiropoulos and Others v. Greece, 10 July 1998, § 31 et passim, Reports of Judgments and Decisions 1998 ‑ IV). States have a right to satisfy themselves that an association ’ s aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions (see Sidiropoulos and Others, cited above, § 40). Where the organisation of the religious community was in issue, a refusal to recognise it was also found to constitute interference with the applicants ’ right to freedom of religion under Article 9 of the Convention (see Metropolitan Church of Bessarabia and Others, cited above, § 105). 79. The State ’ s power to protect its institutions and citizens from associations that might jeopardise them must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a “pressing social need”; thus, the notion “necessary” does not have the flexibility of such expressions as “useful” or “desirable” (see Gorzelik and Others, cited above, §§ 94-95, with further references). 80. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports 1998 ‑ I, and Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, no. 46626/99, § 49, ECHR 2005 ‑ I ). ( b ) Application of the above principles to the present case ( i ) Whether there was interference 81. The Court observes that the applicant communities had lawfully existed and operated in Hungary as Churches registered by the competent court in conformity with the 1990 Church Act. The 2011 Church Act changed the status of all previously registered Churches, except those recognised Churches listed in the Appendix to the 2011 Church Act, into associations. If intending to continue as Churches, religious communities were required to apply to Parliament for individual recognition as such. 82. The Court has found in two previous cases (see Moscow Branch of the Salvation Army, cited above, § 67, and Church of Scientology Moscow v. Russia, no. 18147/02, § 78, 5 April 2007) that the refusal of re ‑ registration disclosed interference with a religious organisation ’ s right to freedom of association and also with its right to freedom of religion. 83. The Court considers that the measure in issue in the present case effectively amounted to the deregistration of the applicants as Churches and constituted interference with their rights enshrined in Articles 9 and 11. It must therefore determine whether the interference satisfied the requirements of paragraph 2 of those provisions, that is, whether it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” (see, among many other authorities, Metropolitan Church of Bessarabia and Others, cited above, § 106). 84. The State ’ s power in this field must be used sparingly; exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. In this connection, the Court reiterates its position as formulated in the cases of Gorzelik and Others (cited above, §§ 94-95) and Jehovah ’ s Witnesses of Moscow v. Russia ( no. 302/02, § 100, 10 June 2010). The burden of proof when it comes to demonstrating the presence of compelling reasons is on the respondent Government (see, mutatis mutandis, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 ). It is therefore for the Government to show in the instant case that it was necessary, in pursuit of the legitimate aims which they relied on, to bar already recognised Churches from maintaining their status with regard to confessional activities, that is, the manifestation of religion. ( ii ) Prescribed by law 85. This issue was not in dispute between the parties. The Court is satisfied that the interference complained of was prescribed by law, namely by the 2011 Church Act. ( iii ) Legitimate aim 86. The Government submitted that the impugned interference, if any, could be regarded as pursuing the legitimate aims of protection of the rights and freedoms of others and the protection of public order, within the meaning of Article 9 § 2, namely, by eliminating entities claiming to pursue religious ends but in fact striving only for financial benefits. The applicants contested this view. The Court considers that the measure in question can be considered to serve the legitimate aim of preventing disorder and crime for the purposes of Article 11 § 2, notably by attempting to combat fraudulent activities. ( iv ) Necessary in a democratic society ( α ) Width of the margin of appreciation 87. With regard to the Government ’ s reliance on the principle articulated in Kimlya and Others ( cited above, § 79 ), according to which the disputed nature of Scientology teachings made it necessary to defer to the national authorities ’ assessment thereof, the Court notes that in that case the lack of European consensus was considered to be demonstrated by the fact that the authorities in various countries had initiated proceedings against the representatives of that religious group. In the Court ’ s view, these actions demonstrated the presence of an actual official dispute regarding the religious nature of the teachings. It is in this particular context that the disputed character of a purported religion may entail a wide margin of appreciation on the State ’ s part in assessing its teachings. 88. However, the Court is of the view that this approach cannot automatically be transposed to situations where a religious group is simply not recognised legally as a fully fledged Church in one or more European jurisdictions. This mere absence of apparent consensus cannot give rise to the same degree of deference to the national authorities ’ assessment, especially when the matter concerns the framework of organisational recognition of otherwise accepted religions (formerly fully fledged Churches ) rather than the very acceptance of a certain set of controversial teachings as a religion. To hold otherwise would mean that non-traditional religions could lose the Convention ’ s protection in one country essentially due to the fact that they were not legally recognised as Churches in others. This would render the guarantees afforded by Articles 9 and 11 largely illusory in terms of guaranteeing proper organisational forms for religions. 89. The Court therefore considers that, although States have a certain margin of appreciation in this field, this cannot extend to total deference to the national authorities ’ assessment of religions and religious organisations; the applicable legal solutions adopted in a member State must be in compliance with the Court ’ s case-law and subject to the Court ’ s scrutiny. ( β ) Positive obligations 90. The Court considers that there is a positive obligation incumbent on the State to put in place a system of recognition which facilitates the acquisition of legal personality by religious communities. This is a valid consideration also in terms of defining the notions of religion and religious activities. In the Court ’ s view, those definitions have direct repercussions on the individual ’ s exercise of the right to freedom of religion, and are capable of restricting the latter if the individual ’ s activity is not recognised as a religious one. According to the position of the United Nations Human Rights Committee (see paragraph 39 above), such definitions cannot be construed to the detriment of non-traditional forms of religion – a view which the Court shares. In this context, it reiterates that the State ’ s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State ’ s part to assess the legitimacy of religious beliefs (see Metropolitan Church of Bessarabia and Others, cited above, §§ 118 and 123, and Hasan and Chaush, cited above, § 62). However, the present case does not concern the definition of religion as such in Hungarian law. 91. The Court further considers that there is no right under Article 11 in conjunction with Article 9 for religious organisations to have a specific legal status. Articles 9 and 11 of the Convention only require the State to ensure that religious communities have the possibility of acquiring legal capacity as entities under the civil law; they do not require that a specific public-law status be accorded to them. 92. Distinctions in the legal status granted to religious communities must not portray their adherents in an unfavourable light in public opinion, which is sensitive to the official assessment of a religion – and of the Church incarnating it – made by the State in public life. In the traditions of numerous countries, designation as a Church and State recognition are the key to social standing, without which the religious community may be seen as a dubious sect. In other words, the refusal to recognise a religious community as a Church may amplify prejudices against the adherents of such, often small, communities, especially in the case of religions with new or unusual teachings. 93. When assessing differences in legal status and the resulting treatment between religious communities in terms of cooperation with the State (where the State, within its margin of appreciation, chooses a constitutional model of cooperation), the Court further notes that these distinctions have an impact on the community ’ s organisation and hence on the practice of religion, individually or collectively. Indeed, religious associations are not merely instruments for pursuing individual religious ends. In profound ways, they provide a context for the development of individual self-determination and serve pluralism in society. The protection granted to freedom of association for believers enables individuals to follow collective decisions to carry out common projects dictated by shared beliefs. 94. The Court cannot overlook the risk that the adherents of a religion may feel merely tolerated – but not welcome – if the State refuses to recognise and support their religious organisation whilst affording that benefit to other denominations. This is so because the collective practice of religion in the form dictated by the tenets of that religion may be essential to the unhampered exercise of the right to freedom of religion. In the Court ’ s view, such a situation of perceived inferiority goes to the freedom to manifest one ’ s religion. ( γ ) Deregistration of the applicant religious communities 95. The Court notes that the immediate effect of the enactment of the 2011 Church Act was that the applicant entities, formerly fully fledged Churches eligible to benefit from privileges, subsidies and donations, lost that status and were relegated to, at best, the status of associations, which largely lack those possibilities. It is true that the subsequent ruling of the Constitutional Court nominally put an end to this interference. In the Government ’ s submission, this provided full redress for the alleged grievance; however, the applicants argued that they could never again enjoy their former status unimpaired. 96. When assessing this effective deregistration of the applicant communities, it is important to note that they had previously been recognised as Churches by the Hungarian authorities under legislation which had been in force at the time of Hungary ’ s accession to the Convention system and which remained applicable until the entry into force of the 2011 Church Act. Moreover, the Court notes – while recognising the Government ’ s legitimate concern regarding the problems connected with the large number of Churches formerly existing in the country (see paragraph 62 above) – that it has not been demonstrated by the Government that less drastic solutions to the problem perceived by the authorities, such as the judicial control or dissolution of Churches proven to be of an abusive character, were not available. 97. The Court cannot but observe that the outcome of the impugned legislation was to deprive existing and operational Churches of their legal framework, in some cases with far-reaching consequences in material terms and in terms of their reputation. ( δ ) Possibility of re-registration for the applicant communities 98. The Court notes that under the legislation in force, there is a two-tier system of Church recognition in place in Hungary. A number of Churches, the so-called incorporated ones, enjoy full Church status including entitlement to privileges, subsidies and tax donations. The remaining religious associations, although free to use the label “ Church ” since August 2013, are in a much less privileged position, with only limited possibilities to move from this category to that of an incorporated Church. The applicants in the present case, formerly fully -fledged Churches, now belong to the second category, with substantially reduced rights and material possibilities to manifest their religion, when compared either with their former status or with the currently incorporated Churches. 99. The Court notes the Government ’ s arguments, which seem to focus on the one hand on the feasibility of moving to incorporated Church status, and on the other hand on the reasonableness of the conditions attached to such a move, notably the objective criteria relating to the Church ’ s length of existence and minimum membership and the absence of a threat to national security as ultimately decided by Parliament. 100. As to the two-tier system of Church recognition, the Court is satisfied that such a scheme may per se fall within the States ’ margin of appreciation (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 138, ECHR 2013). Nevertheless, any such scheme normally belongs to the historical-constitutional traditions of those countries which operate it, and a State - Church system may be considered compatible with Article 9 of the Convention in particular if it is part of a situation pre ‑ dating the Contracting State ’ s ratification of the Convention (see Darby v. Sweden, 23 October 1990, opinion of the Commission, § 45, Series A no. 187 ). For example, the Court has previously accepted that additional funding from the State budget to the State Church did not violate the Convention, in view, among other considerations, of the fact that the employees of the State Church were civil servants with rights and obligations in that capacity with regard to the general public and not just to the members of their congregations (see Ásatrúarfélagið v. Iceland (dec.), no. 22897/08, § 34, 18 September 2012). On a more general note the Court would add that the funding of Churches and other material or financial benefits granted to them, while not incompatible with the Convention, must not be discriminatory or excessive, that is, clearly disproportionate to those received for comparable activities by other organisations in a given society. 101. However, in the present case the Court finds that the Government have not adduced any convincing evidence to demonstrate that the list of incorporated Churches contained in the Appendix to the 2011 Church Act as currently applicable reflects Hungarian historical tradition fully, in that it does not encompass the applicant religious communities and can be understood to refer back to the state of affairs prevailing in 1895 (see the excerpts from the minutes of the relevant debate in the competent parliamentary committee in paragraph 37 above) while disregarding more recent historical developments. 102. The Court notes that decisions on the recognition of incorporated Churches lie with Parliament, an eminently political body, which has to adopt those decisions by a two-thirds majority. The Venice Commission has observed that the required votes are evidently dependent on the results of elections (see paragraph 40 above, at point 76). As a result, the granting or refusal of Church recognition may be related to political events or situations. Such a scheme inherently entails a disregard for neutrality and a risk of arbitrariness. A situation in which religious communities are reduced to courting political parties for their votes is irreconcilable with the requirement of State neutrality in this field. 103. The Court considers that the applicant religious communities cannot reasonably be expected to submit to a procedure which lacks the guarantees of objective assessment in the course of a fair procedure by a non-political body. Their failure to avail themselves of this legal avenue cannot therefore result in their applications being declared inadmissible for non-exhaustion of domestic remedies, especially if the applicants in question could not objectively meet the requirements in terms of the length of their existence and the size of their membership. The Government ’ s objection of non-exhaustion of domestic remedies in this regard (see paragraph 49 above) must therefore be dismissed. 104. Leaving aside the potential for the re-registration procedure to be tainted by political bias, the Court has found that the refusal of registration for failure to present information on the fundamental principles of a religion may be justified in the particular circumstances of a case by the need to determine whether the denomination seeking recognition presents any danger for a democratic society (see Cârmuirea Spirituală a Musulmanilor din Republica Moldova v. Moldova (dec.), no. 12282/02, 14 June 2005). However, in the present case the Court observes that the Government gave no reason for the requirement to scrutinise afresh already active Churches from the perspective of their possible dangerousness to society, still less the requirement to verify the content of their teachings, as required implicitly under the 2011 Church Act (see section 14, as amended, in paragraphs 29 and 32 above). Nor did they demonstrate any evidence of actual danger on the part of the applicant entities ( compare Church of Scientology Moscow, cited above, § 93). The Court notes that by the material time the applicants had been lawfully operating in Hungary as religious communities for several years. There is no evidence before the Court that during that time any procedure had been set in motion by the authorities seeking to challenge the applicants ’ existence, notably on the ground that they were operating unlawfully or abusively. The reasons for requiring them to re-register should therefore have been particularly weighty and compelling (see Church of Scientology Moscow, cited above, § 96, and Moscow Branch of the Salvation Army, cited above, § 96). In the present case no such reasons have been put forward by the domestic authorities. 105. However, even assuming that there were such weighty and compelling reasons, the Court cannot but conclude that the applicant religious groups were not offered a fair opportunity (see Religionsgemeinschaft der Zeugen Jehovas and Others, cited above, § 92) to obtain the level of legal recognition sought, notably in view of the political nature of the procedure. ( ε ) Possibilities for the applicant communities to enjoy material advantages in order to manifest their religion and cooperate with the State in that regard 106. The Court observes that the freedom to manifest one ’ s religion or beliefs under Article 9 does not confer on the applicant associations or their members an entitlement to secure additional funding from the State budget (see Ásatrúarfélagið, cited above, § 31), but that subsidies which are granted in a different manner to various religious communities – and thus, indirectly, to various religions – call for the strictest scrutiny (see, mutatis mutandis, Gorzelik and Others, cited above, § 95). 107. The Court has already recognised that the privileges obtained by religious societies, in particular in the field of taxation, facilitate their pursuance of religious aims (see Association Les Témoins de Jéhovah v. France, no. 8916/05, §§ 49 and 52-53, 30 June 2011) and that there is therefore an obligation incumbent on the State authorities under Article 9 of the Convention to remain neutral in the exercise of their powers (see Religionsgemeinschaft der Zeugen Jehovas and Others, cited above, § 92) when it comes to allocating these resources and granting these privileges. Where, in pursuit of its perceived positive obligations with regard to Articles 9 and 11, the State has voluntarily decided to afford entitlement to subsidies and other benefits to religious organisations – such entitlement thus falling within the wider ambit of those Convention Articles – it cannot take discriminatory measures in the granting of those benefits (see, mutatis mutandis, E.B. v. France [GC], no. 43546/02, §§ 48-49, 22 January 2008, and Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 58, 9 December 2010 ). Similarly, if the State decides to reduce or withdraw certain benefits to religious organisations, such a measure may not be discriminatory either. 108. In the Court ’ s view, States must be left considerable liberty in choosing the forms of cooperation with the various religious communities, especially since the latter differ widely from each other in terms of their organisation, the size of their membership and the activities stemming from their respective teachings. This is particularly so in selecting the partners with which the State intends to collaborate on certain activities. The above prerogative of the State assumes even greater importance when it comes to public, societal tasks undertaken by religious communities but not directly linked to their spiritual life (that is, not related to, for example, charitable activities flowing from their religious duties). In this context, States enjoy a certain margin of appreciation when shaping collaboration with religious communities. At this juncture, the Court notes the particular context of Hungarian State- Church relations, and in particular the fact that Hungarian Churches were subjected to measures depriving them of their rights after 1945 (see the preambles to the two Acts cited in paragraph 33 above). 109. In its choice of partners for the purpose of outsourcing public - interest tasks, the State may not discriminate between religious communities. The neutrality of the State requires that, where the State chooses to cooperate with religious communities, the choice of partners must be based on ascertainable criteria relating, for example, to their material capacities. Distinctions made by the State with regard to recognition, partnerships and subsidies must not produce a situation in which the adherents of a religious community feel like second-class citizens, for religious reasons, on account of the State ’ s less favourable stance towards their community. 110. The Court observes that under Hungarian law incorporated Churches enjoy preferential treatment, in particular in the field of taxation and subsidies (see section 20 of the 2011 Church Act, cited in paragraph 32, and also paragraph 33). The advantages obtained by incorporated Churches are substantial and facilitate their pursuance of religious aims on account of their special organisational form. 111. In the Court ’ s view, the freedom afforded to States in regulating their relations with Churches should include the possibility of modifying such privileges by means of legislative measures. However, this freedom cannot extend so far as to encroach upon the neutrality and impartiality required of the State in this field. In the present case, the withdrawal of benefits ( resulting from the deregistration of Churches and the consequent lack of incorporated Church status) concerned only certain denominations, including the applicants. It is true that the applicant communities do not appear to fulfil the cumulative criteria established by the lawmaker, notably as regards the minimum number of members and the minimum length of existence. These criteria have arguably placed the applicants, some of which are new and/or small communities, in a disadvantageous situation which is at odds with the requirements of neutrality and impartiality. As regards the question of the duration of religious groups ’ existence, the Court accepts that the stipulation of a reasonable minimum period may be necessary in the case of newly established and unknown religious groups. But it is hardly justified in the case of religious groups which were established once restrictions on confessional life were lifted after the end of the communist regime in Hungary and which must be familiar to the competent authorities by now, whilst just falling short of the required period of existence. In this connection the Court notes the Venice Commission ’ s view according to which the relevant periods are excessive (see paragraph 40 above). 112. The Court finds no indication that the applicants are prevented from practising their religion as legal entities, that is, as associations, a status which secures their formal autonomy vis-à-vis the State. Nevertheless, under the legislation in force, certain religious activities performed by Churches are not available to religious associations, a factor which in the Court ’ s view has a bearing on the latter ’ s right to collective freedom of religion. The Court notes in this connection that, in decision no. 6/2013 (III. 1.), the Constitutional Court identified, in a non-exhaustive list, eight privileges conferred only on Churches (see points 158 to 167 of the decision, cited in paragraph 34 above). In particular, only incorporated Churches are entitled to the 1% of personal income tax earmarked by believers and to the corresponding State subsidy. These sums are intended to support faith-related activities. For that reason the Court finds that such differentiation fails to satisfy the requirement of State neutrality and is devoid of objective grounds. Such discrimination imposes a burden on believers of smaller religious communities without any objective and justifiable reason. 113. In this connection, the Court adds that wherever the State, in conformity with Articles 9 and 11, legitimately decides to retain a system in which the State is constitutionally mandated to adhere to a particular religion (see Darby, cited above), as is the case in some European countries, and it provides State benefits only to some religious entities and not to others in the furtherance of legally prescribed public interests, this must be done on the basis of reasonable criteria related to the pursuance of public interests (see, for example, Ásatrúarfélagið, cited above ). 114. In view of these considerations, the Court finds it unnecessary to examine possible discrimination with regard to the operation of cemeteries, religious publications and the production and sale of religious objects, which are often related to religious practice. It likewise finds it unnecessary to examine the differences in the possibilities for teaching religion, employment or cooperation with the State on public-interest activities. ( ζ ) Conclusion 115. The Court concludes that, in removing the applicants ’ Church status altogether rather than applying less stringent measures, in establishing a politically tainted re-registration procedure whose justification as such is open to doubt and, finally, in treating the applicants differently from the incorporated Churches not only with regard to the possibilities for cooperation but also with regard to entitlement to benefits for the purposes of faith-related activities, the authorities disregarded their duty of neutrality vis-à-vis the applicant communities. These elements, taken in isolation and together, are sufficient for the Court to find that the impugned measure cannot be said to correspond to a “pressing social need”. There has therefore been a violation of Article 11 of the Convention read in the light of Article 9. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLES 9 AND 11 116. The applicants further complained under Article 14 of the Convention, read in conjunction with Articles 9 and 11, that they had been discriminated against on account of their position as religious minorities. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 117. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been invoked both on its own and together with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999 ‑ III, and Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45). 118. In the circumstances of the present case the Court considers that the inequality of treatment of which the applicants claimed to be victims has been sufficiently taken into account in the above assessment leading to the finding of a violation of substantive Convention provisions (see, in particular, paragraph 115 above). It follows that – although this complaint is also admissible – there is no cause for a separate examination of the same facts from the standpoint of Article 14 of the Convention (see Metropolitan Church of Bessarabia, cited above, § 134, and Church of Scientology Moscow, cited above, § 101). IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 READ ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 119. In applications nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12 and 41463/12, the applicants further complained under Article 1 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention, about the loss of State subsidies owing to the loss of their former Church status. Article 1 of Protocol No. 1 provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” ... 120. The Government contested that argument. 121. The Court considers that the problem of access to State funds paid to Churches is to a large extent identical to the issues examined in the context of Articles 9 and 11 of the Convention. The privileges denied to the applicant associations have been sufficiently taken into account in that context (see paragraphs 106 to 115 above), especially since the pecuniary claims the applicants made under this head are not different from their Article 41 claims submitted in respect of the alleged violations of Articles 9 and 11 of the Convention. It follows that – although these complaints are also admissible – there is no cause for a separate examination of the same facts from the standpoint of Article 1 of Protocol No. 1 read alone or in conjunction with Article 14 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 122. The applicants complained that the procedure with regard to the deregistration and re-registration of their entities as Churches was unfair, in breach of Article 6 § 1 of the Convention. Article 6 § 1 of the Convention provides: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 123. The Court considers that, in the light of its findings concerning Articles 11 and 9 of the Convention (see paragraph 115 above), it is not necessary to examine separately either the admissibility or the merits of this complaint. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 124. The applicants also complained that there was no effective remedy available to them by which to complain of the legislation in question, in breach of Article 13 of the Convention. The Court reiterates that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority on the ground of being contrary to the Convention (see, among other authorities, Vallianatos, cited above, § 94; Roche v. the United Kingdom [GC], no. 32555/96, § 137, ECHR 2005-X; and Paksas v. Lithuania [GC], no. 34932/04, § 114, ECHR 2011). In the instant case, the applicants ’ complaint under Article 13 is at odds with this principle. Consequently, this complaint is manifestly ill-founded and as such must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 125. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 126. The applicants claimed the following sums in respect of pecuniary damage: (i) in application no. 23611/12: Evangéliumi Szolnoki Gyülekezet Egyház – 33,579,732 Hungarian forints (HUF) (approximately 111,900 euros (EUR)); Mr Soós – a monthly sum of HUF 159,080 (EUR 530) from 29 February 2012 until the decision of the Court; (ii) in application no. 26998/12: Budapesti Autonóm Gyülekezet – HUF 27,225,032 (EUR 90,750); Mr Görbicz – a monthly sum of HUF 160,000 (EUR 530) from 1 June 2012 until the decision of the Court; (iii) in application no. 41150/12: Szim Salom Egyház – HUF 96,965,719 (EUR 323,200); (iv) in application no. 41155/12: Magyar Reform Zsidó Hitközségek Szövetsége Egyház – HUF 50,653,431 (EUR 168,850); (v) in application no. 54977/12: Magyarországi Evangéliumi Testvérközösség – HUF 1,461,192,932 (EUR 4,710,000); (vi) in application no. 41553/12: (a) ANKH Az Örök Élet Egyháza – HUF 2,491,432 (EUR 8,300); (b) Árpád Rendjének Jogalapja Tradicionális Egyház – HUF 3,415,725 (EUR 11,400); (c) Dharmaling Magyarország Buddhista Egyház – HUF 10,261,637 (EUR 34,200); (d) Fény Gyermekei Magyar Esszénus Egyház – HUF 8,855,523 (EUR 29,500); (e) Mantra Magyarországi Buddhista Egyháza – HUF 18,203,096 (EUR 60,700); (f) Szangye Menlai Gedün, a Gyógyító Buddha Közössége Egyház – HUF 2,099,453 (EUR 7,000); (g) Univerzum Egyháza – HUF 5,665,877 (EUR 18,900); (h) Usui Szellemi Iskola Közösség Egyház – HUF 114,822,096 (EUR 382,750); (i) Út és Erény Közössége Egyház – HUF 4,937,194,474 (EUR 16,457,300). These sums allegedly correspond in essence to the tax donations and the State subsidies lost or expected to be lost in the future, in various ways, on account of the impugned legislation. In respect of Mr Soós and Mr Görbicz, the claims relate to their lost remuneration as ministers. 127. In respect of non-pecuniary damage, the applicants claimed the following sums: (i) Magyar Keresztény Mennonita Egyház (no. 70945/11), Evangéliumi Szolnoki Gyülekezet Egyház (no. 23611/12), Budapesti Autonóm Gyülekezet (no. 26998/12), Szim Salom Egyház (no. 41150/12), Magyar Reform Zsidó Hitközségek Szövetsége Egyház (no. 41155/12) and Magyarországi Biblia Szól Egyház (no. 56581/12): EUR 70,000 each; (ii) Mr Izsák-Bács (no. 70945/11), Mr Soós (no. 23611/12), Mr Görbicz (no. 26998/12), Mr Guba (no. 41150/12) and Ms Bruck (no. 41155/12): EUR 30,000 each; (iii) in application no. 41553/12: EUR 100,000 for each applicant. 128. The applicants claimed the following sums in respect of the costs and expenses incurred before the Court : (i) in application nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12 and 56581/12, the applicants claimed, jointly, EUR 41,910, corresponding to 165 hours ’ legal work billable by their lawyer at an hourly rate of EUR 200 plus VAT; (ii) in application no. 54977/12, the applicant claimed EUR 5,250 for 35 hours ’ legal work billable by its lawyer at an hourly rate of EUR 150 plus VAT; (iii) in application no. 41553/12, the applicants claimed, jointly, EUR 18,000, corresponding to 120 hours ’ legal work billable by their lawyer at an hourly rate of EUR 150 plus VAT. 129. The Government contested these claims as excessive. 130. The Court considers that, as regards the claims in respect of non ‑ pecuniary damage made by Mr Izsák-Bács (no. 70945/11), Mr Soós (no. 23611/12), Mr Görbicz (no. 26998/12), Mr Guba (no. 41150/12) and Ms Bruck (no. 41155/12), the finding of a violation constitutes sufficient just satisfaction. 131. The Court further considers that the remaining questions as to the application of Article 41 are not ready for decision, especially in view of the complex array of material advantages which the applicants claimed to have lost. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court). 132. Accordingly, the Court reserves these questions and invites the Government and the applicants to notify it, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, of any agreement that they may reach. | The Court considered that the deregistration of the applicants as churches had constituted an interference with their rights under Articles 9 and 11 (freedom of assembly and association) of the Convention. It was undisputed that this interference had been prescribed by law, namely the 2011 Church Act. The Court was prepared to accept that the measure could be considered to have served the legitimate aim of preventing disorder and crime for the purpose of Article 11, notably by attempting to combat fraudulent activities by certain churches. It concluded however that the measure imposed by the Church Act had not been “necessary in a democratic society” and therefore held that there had been a violation of Article 11 read in the light of Article 9 of the Convention. The Court found in particular that the Hungarian Government had not shown that there were not any other, less drastic solutions to problems relating to abuse of State subsidies by certain churches than to de-register the applicant communities. Furthermore, it was inconsistent with the State’s duty of neutrality in religious matters that religious groups had to apply to Parliament to obtain re-registration as churches and that they were treated differently from incorporated churches with regard to material benefits without any objective grounds. |
52 | Applications lodged by the parent whose child had been abducted by the other parent | II. RELEVANT DOMESTIC LAW AND PRACTICE 130. As to the right to respect for family life, the Lithuanian Constitution reads: Article 38 “The family shall be the basis of society and the State. Family, motherhood, fatherhood, and childhood shall be under the protection and care of the State. ... In the family, the rights of spouses shall be equal...” 131. As regards Lithuanian citizenship, the Lithuanian Constitution reads: Article 12 “Citizenship of the Republic of Lithuania shall be acquired by birth or on other grounds established by law. With the exception of individual cases provided for by law, no one may be a citizen of both the Republic of Lithuania and another state at the same time. The procedure for the acquisition and loss of citizenship shall be established by law.” Article 13 “The State of Lithuania shall protect its citizens abroad. It shall be prohibited to extradite a citizen of the Republic of Lithuania to another state unless an international treaty of the Republic of Lithuania establishes otherwise.” 132. The Law on Citizenship, at the material time (Article 9 until 22 July 2008; see paragraph 133 below), read: Article 9. Citizenship of children of whom one of the parents is a Lithuanian citizen “1. A child whose parents have different citizenships, but one of whom was a citizen of the Republic of Lithuania at the time of the child’s birth, will be a citizen of the Republic of Lithuania if he or she was born in the territory of the Republic of Lithuania ...” Article 16. Granting citizenship by way of exception “1. The President of the Republic may, in compliance with this Law, grant citizenship of the Republic of Lithuania by way of exception to citizens of other States or stateless persons of outstanding merit to the Republic of Lithuania who have integrated into Lithuanian society, without applying the [usual] conditions for granting citizenship of the Republic of Lithuania ... Under this Law, outstanding merit to the Republic of Lithuania shall include any action by a foreign citizen or a stateless person, which significantly contributes to the consolidation of the statehood of the Republic of Lithuania, as well as to the strengthening of its power and authority in the international community ...” Article 22. The change of children’s citizenship upon the change of citizenship of both parents “1. If both parents acquire citizenship of the Republic of Lithuania or they both lose it, the citizenship of their children under fourteen years of age changes accordingly ...” Article 23. Recognition of citizenship to children of whom one of the parents has citizenship of the Republic of Lithuania “1. If one parent has the citizenship of the Republic of Lithuania and the other parent remains a citizen of another country, their child may obtain the citizenship of the Republic of Lithuania if both parents so ask in writing. If the parents are divorced, the child may obtain the citizenship of the Republic of Lithuania on the basis of a written request of one of the parents who has obtained the citizenship of the Republic of Lithuania, and with whom the child has been left to live by a court decision or with whom the child habitually lives de facto ...” 133. On 15 July 2008 the Law on Citizenship was amended to provide (wording in force as of 22 July 2008): Article 9. Citizenship of children of whom one parent is a citizen of the Republic of Lithuania “1. A child whose parents have different citizenships, but of whom one was a citizen of the Republic of Lithuania at the time of the child’s birth, will be a citizen of the Republic of Lithuania irrespective of whether he or she was born within or outside the territory of the Republic of Lithuania ...” 134. The Law on the Implementation of EC Regulation No. 2201/2003 was passed by the Seimas on 21 April 2005 ( Įstatymas dėl 2003 m. lapkričio 27 d. Tarybos reglamento (EB) Nr. 2201/2003 dėl jurisdikcijos ir teismo sprendimų, susijusių su santuoka ir tėvų pareigomis, pripažinimo bei vykdymo, panaikinančio reglamentą (EB) Nr. 1347/2000, įgyvendinimo ). A request for return of a child who had been brought to Lithuania or held there unlawfully had to be examined within the time ‑ limits set out in Article 11 of Regulation (EC) No. 2201/2003 [that is, within six weeks] (Article 2 § 5 of the aforementioned Law). When examining such a request, a regional court with jurisdiction for the child’s last known place of residence was to act as the court of first instance (Article 2 § 2). An appeal ( atskirasis skundas ) could then be lodged with the Court of Appeal, whose decision whether or not the child should be returned was final. The Law explicitly stated that “in cases concerning a child’s return, an appeal on points of law is not possible” (Article 2 § 6). In matters concerning the return of a child, the Central Authority for the performance of the functions designated in the Regulation was the State Child Rights and Adoption Service under the Ministry of Social Security and Labour. Its function was to provide a conclusion ( išvada ) regarding the child’s return when such a dispute was heard by a court (Article 2 § 3). The Law also read that certificates issued in accordance with Articles 41 and 42 of the Regulation in a Member State were considered as valid enforcement orders (Article 3 § 1). That Law was replaced by a new Law on the Implementation of the European Union and International Law Acts within Civil Proceedings ( Civilinį procesą reglamentuojančių Europos Sąjungos ir tarptautinės teisės aktų įgyvendinimo įstatymas ), passed by the Seimas on 13 November 2008. Article 7 §§ 5 and 6 of the new Law contained provisions identical to the provisions of Article 2 §§ 5 and 6 of the earlier Law. Under the Law on the Constitutional Court, annulment of the legal act that has been challenged before the Constitutional Court is a ground to discontinue the proceedings before that court (Article 69). 135. According to the Law on Courts, as in force at the material time, the Supreme Court is the court which examines appeals on the points of law in cases, where decisions have become final (Article 23 § 1). 136. The Code of Civil Procedure at the material time read as follows: Article 339. The coming into force of a ruling adopted by the appellate court ( Apeliacinės instancijos teismo nutarties įsiteisėjimas ) “A ruling regarding a separate complaint ( atskirasis skundas ) adopted by the appellate court shall come into force with effect from the date of its adoption.” Article 346. Grounds for reviewing court decisions or rulings that have come into force in cassation proceedings “1. Cassation proceedings are possible only if the grounds enumerated in this article exist. 2. The grounds for reviewing a case in cassation proceedings are: 1) breach of substantive or material legal norms which has an essential impact on the uniform interpretation and application of the law, if that breach could have meant that an unlawful court decision (ruling) was adopted; 2) if the court in the decision (ruling) departed from the Supreme Court’s practice as to how a certain legal rule should be interpreted and applied; 3) if the Supreme Court’s practice as regards a certain legal question is not uniform.” Article 353. The limits of examination of the case ( Bylos nagrinėjimo ribos ) “1. The court of cassation, without exceeding the boundaries of the appeal on points of law, shall verify the court decisions and (or) rulings that have been appealed against inasmuch as the questions of law are concerned. The court of cassation shall be bound by the circumstances as established by the first-instance and appellate courts. 2. The court [of cassation] may overstep the boundaries of the appeal on the points of law if the public interest so requires ...” Article 363. Suspension of execution of a court decision or ruling “1. The President of the Supreme Court, the chairman of the civil cases division, the chamber for selection of the cases for the examination ( teisėjų atrankos kolegija ), a chamber of judges or plenary session of the civil cases division shall have the right to suspend the execution of a court decision or ruling until an appeal on points of law has been examined in the Supreme Court.” Article 365. Reopening of proceedings “1. Court proceedings which have been terminated by a court decision (ruling) which has entered into force with final effect may be reopened on the grounds and according to the rules which are set out in this Chapter. A request for reopening may be submitted by the parties to the civil proceedings and by third parties, and also persons not involved in the case but whose rights or interests protected by law are breached by the court decision or ruling which had entered into force. 2. Requests for a reopening of court proceedings in order to protect the public interest and according to the rules set out in this Chapter may be submitted by the Prosecutor General.” Article 366. Grounds for reopening proceedings “1. Proceedings may be reopened if: ... 2) essential new circumstances come to light which had not been known and could not have been known to the applicant ( nebuvo ir negalėjo būti žinomos pareiškėjui ) when the case was heard initially; 9) the first-instance court made a clear mistake when applying the law and its decision (or ruling) has not been reviewed on appeal. The Prosecutor General also has the right to lodge a request for the proceedings to be reopened also regarding court decisions (rulings) which have been reviewed on appeal.” Article 372. Legal authority of a decision (ruling) “1. A request to reopen proceedings shall not stop execution of a court decision or ruling. 2. A court which examines a request for reopening shall have the right to suspend the execution of a court decision or ruling until the case for reopening of the proceedings has been examined. A ruling for suspension of the court decision or ruling is not amenable to appeal.” 137. According to the Commentary on the Code of Civil Procedure ( Lietuvos Respublikos civilinio proceso kodekso komentaras, II tomas, Justitia, Vilnius 2005, p. 417), the norm set out in Article 353 § 1 means that the cassation court is bound by the circumstances of the case as established by the first-instance and appellate courts. The cassation court may not establish new facts or evaluate existing or new evidence afresh. When issuing a decision, the cassation court may not hold that a particular circumstance as established by a lower instance court exists or does not exist or, conversely, that a circumstance which a lower court had previously not established as existing does now exist. Furthermore, under Article 353 § 1, the court of cassation is not bound to always rely on the circumstances as established by the appellate instance court if they differ from those established by the first-instance court. The court of cassation may choose which court’s findings – those of the first instance or the appellate instance – to rely on. 138. By a ruling of 18 July 2017 in civil case no. 3P-1249/2017 the Supreme Court confirmed the settled case-law that questions regarding the establishment of facts could not be the object of cassation proceedings, because the court of cassation was bound by the circumstances that have been established by the first-instance and appellate courts. The cassation court reviewing such an appeal is bound by the facts established by lower courts and may decide only questions of law (Article 353 § 1 of the Code of Civil Procedure). 139. The Law on Courts at the material time provided that cases are heard at the Supreme Court in three or seven judges’ chambers or in plenary session (Article 36 § 5). Under the Statute of the Supreme Court, its President, as a judge, hears cases when he or she is in the composition of the Supreme Court’s chamber (Article 11). 140. Under the Lithuanian Constitution, justice shall be administered only by courts. When administering justice, judges and courts shall be independent. When considering cases, judges shall obey only the law (Article 109). 141. The Law on Bailiffs at the relevant time provided that when exercising their functions bailiffs were independent and were to act on the basis of the Constitution, international treaties signed by Lithuania, and the laws and other legal instruments adopted in Lithuania. Bailiffs are appointed and dismissed by the Minister of Justice. In carrying out their functions, bailiffs must adhere to the principle of lawfulness as well as to the principles of civil proceedings. A bailiff must carry out his professional duties in good faith. In enforcing writs of execution, the bailiff must use all lawful remedies to protect adequately the interests of the plaintiff, without violating the rights and lawful interests of other parties to the enforcement procedure (Article 3 § 2). At the material time, Article 594 of the Code of Civil Procedure provided that the procedural actions of a bailiff were supervised by the judge of the region in which the bailiff is active. 142. As regards parents representing children, the Civil Code reads: Article 3.157. Representation of children “1. Children who are legally incapable shall be represented by their parents under the law, except where the parents have been declared legally incapable by a court judgment. 2. Parents shall represent their children on presentation of the child’s birth certificate.” 143. The Lithuanian Criminal Code provides that a father, mother or a close relative who abducts their own or a relative’s young child from a children’s establishment or from a person with whom the child lawfully resides is punishable by community service or by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to two years (Article 156 § 2). A person who, by disregarding the procedure established by law, wilfully exercises an existing or alleged right of his own or of another person which is disputed or recognised but not yet exercised, and causes major damage to that person’s rights or legitimate interests is punishable by a fine or by arrest or by imprisonment for a term of up to three years (Article 294 § 1). 144. The Law on International Treaties at the material time read that the treaties that had entered into force must be executed (Article 11). The principle of pacta sunt servanda has been confirmed by the Constitutional Court as early as in its ruling of 17 October 1995. According to the Constitutional Court’s ruling of 14 March 2006, that principle is also a constitutional principle in Lithuania. III. RELEVANT INTERNATIONAL AND EUROPEAN LAW AND PRACTICE A. The Hague Convention 145. The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”), which came into force in respect of Lithuania on 1 September 2002, read as follows: “The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions – ... Article 1 The objects of the present Convention are – a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ... Article 3 The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Article 5 For the purposes of this Convention – a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence. ... Article 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ... Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence. Article 14 In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. ... Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. Article 17 The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention. ... Article 19 A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. Article 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ...” 146. As noted by the Court in X v. Latvia ([GC], no. 27853/09, § 35, ECHR 2013), the Explanatory Report on the 1980 Hague Child Abduction Convention ‒ prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 (hereinafter – “the Pérez-Vera Report”) ‒ seeks to throw into relief the principles which form the basis of the 1980 Convention and to supply to those who must apply it a detailed commentary on its provisions. It appears from this report that, in order to discourage the possibility for the abducting parent to have his or her action recognised as lawful in the State to which the child has been taken, the 1980 Convention enshrines, in addition to its preventive aspect, the restoration of the status quo, by an order for immediate return of the child, which would make it possible to restore the situation that had been unilaterally and wrongfully changed. Compliance with custody rights is almost entirely absent from the scope of the 1980 Convention, as this matter is to be discussed before the relevant courts in the State of the child’s habitual residence prior to removal. The philosophy of the Hague Convention is to fight against the multiplication of international abductions, based always on a wish to protect children by acting as interpreter of their real interests. Accordingly, the objective of prevention and immediate return corresponds to a specific concept of “the child’s best interests”. 147. The Pérez-Vera Report, insofar as relevant, reads: “A. Definition of the Convention’s subject-matter 11. With regard to the definition of the Convention’s subject-matter, we need only remind ourselves very briefly that the situations envisaged are those which derive from the use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child. The variety of different circumstances which can combine in a particular case makes it impossible to arrive at a more precise definition in legal terms. However, two elements are invariably present in all cases which have been examined and confirm the approximate nature of the foregoing characterisation. Firstly, we are confronted in each case with the removal from its natural environment of a child whose custody had been entrusted to and lawfully exercised by a natural or legal person. Naturally, a refusal to restore a child to its own environment after a stay abroad to which the person exercising the right of custody had consented must be put in the same category. In both cases, the outcome is in fact the same: the child is taken out of the family and social environment in which its life has developed. What is more, in this context the type of the legal title which underlies the exercise of custody rights over the child matters little, since whether or not a decision on custody exists in no way alters the sociological realities of the problem. Secondly, the person who removes the child (or who is responsible for its removal, where the act of removal is undertaken by a third party) hopes to obtain a right of custody from the authorities of the country to which the child has been taken. The problem therefore concerns a person who, broadly speaking, belongs to the family circle of the child; indeed, in the majority of cases, the person concerned is the father or mother. 14. It frequently happens that the person retaining the child tries to obtain a judicial or administrative decision in the State of refuge, which would legalize the factual situation which he just brought about. However, if he is uncertain about the way in which the decision will go, he is just as likely to opt for inaction, leaving it up to the dispossessed party to take the initiative. Now, even if the latter acts quickly, that is to say manages to avoid the consolidation through lapse of time of the situation brought about by the removal of the child, the abductor will hold the advantage, since it is he who had chosen the forum in which the case is to be decided, a forum which, in principle, he regards as more favourable to his own claims. 15. To conclude, it can firmly be stated that the problem with which the Convention deals – together with all the drama implicit in the fact that it is concerned with the protection of children in international relations – derives all of its legal importance from the possibility of individuals establishing legal and jurisdictional links which are more or less artificial. In fact, resorting to this expedient, an individual can change the applicable law and obtain a judicial decision favourable to him. Admittedly, such a decision, especially coexisting with others to the opposite effect issued by another forum, will enjoy only limited geographical validity, but in any event it bears a legal title sufficient to ‘legalise’ a factual situation which none of the legal systems involved wished to see brought about.” Second Part — Commentary on the specific articles of the Convention Article 11 – The use of expeditious procedures by judicial or administrative authorities “104. The importance throughout the Convention of the time factor appears again in this article. Whereas article 2 of the Convention imposes upon Contracting States the duty to use expeditious procedures, the first paragraph of this article restates the obligation, this time with regard to the authorities of the State to which the child has been taken and which are to decide upon its return. There is double aspect to this duty: firstly, the use of the most speedy procedures known to their legal system; secondly, that applications are, so far as possible, to be granted priority treatment. The second paragraph, so as to prompt internal authorities to accord maximum priority to dealing with the problems arising out of the international removal of children, lays down a non-obligatory time-limit of six weeks, after which the applicant or Central Authority of the requested State may request a statement of reasons for the delay. Moreover, after the Central Authority of the requested State receives the reply, it is once more under a duty to inform, a duty owed either to the Central Authority of the requesting State or to the applicant who has applied to it directly. In short, the provision’s importance cannot be measured in terms of the requirements of the obligations imposed by it, but by the very fact that it draws the attention of the competent authorities to the decisive nature of the time factor in such situations and that it determines the maximum period of time within which a decision on this matter should be taken.” 148. In 2003 the HCCH published Part II of the Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Although primarily intended for the new Contracting States and without binding effect ‒ especially in respect of the judicial authorities ‒ this document seeks to facilitate the Convention’s implementation by proposing numerous recommendations and clarifications. The Guide repeatedly emphasises the importance of the Explanatory Report to the 1980 Convention (the Pérez-Vera Report), in helping to interpret coherently and understand the 1980 Convention (see, for example, points 3.3.2 “Implications of the transformation approach” and 8.1 “Explanatory Report on the Convention: the Pérez-Vera Report”). In particular, it emphasises that the judicial and administrative authorities are under an obligation, inter alia, to process return applications expeditiously, including on appeal (point 1.5 “Expeditious procedures”). Expeditious procedures should be viewed as procedures which are both fast and efficient: prompt decision-making under the Convention serves the best interests of children (point 6.4 “Case management”). The Guide to Good Practice specifies that delays in the enforcement of return orders, or their non-enforcement, in certain Contracting States are matters of serious concern, and recommends that States Parties ensure that there are simple and effective mechanisms to enforce orders for the return of children within their domestic systems, noting that the return must actually be effected and not just ordered (point 6.7 “Enforcement”) (see X v. Latvia [GC], cited above, § 36). 149. The Guide to Good Practice (Part I - Central Authority Practice, 2003) under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction specifically reads: 1.5.1 Expeditious procedures are essential at all stages of the Convention process “Speed is of the essence in Hague abduction matters. Expeditious procedure is a key operating principle for any person or body involved in the implementation of the Convention. This is clear from the objects of the Convention as set out in Article 1, to secure the prompt return of children. It is also clear from the general direction in Article 2 to use the most expeditious procedures possible, and in Article 11 to act expeditiously in proceedings for the return of children. To encourage expeditious procedures, Article 23 of the Convention removes any requirement for legalisation of documents or similar formalities.” 1.5.2 Failure to act promptly undermines the Convention “The most contentious issue surrounding implementation of the Convention concerns delay, in processing applications, resolving matters in court, or enforcing return orders. The need for speed at all stages of the process cannot be over-emphasised. ... Many Contracting States have expressed concerns about delays and excessively complex procedures used by Central Authorities in processing cases, in responding to communications, and in referring cases to court. An essential step that minimises these obstacles, and achieves speedy or prompt action, is to develop clear and effective administrative and legal procedures for handling Convention applications. This should be done at an early stage of implementation.” 1.5.3 Interests of the child require expeditious action “The Preamble to the Convention states that the interests of children are paramount, and that the Convention’s purpose is to protect them from the harmful effects of abduction. Experience has shown that speedy, prompt or expeditious action under the Hague Convention is a critical factor in protecting children’s interests. An expedited process will: minimise disruption or dislocation to the child taken from its familiar environment; minimise harm to the child caused by separation from the other parent; reduce the further disruption for the child which may result where a return order is made after a settled period abroad; prevent or limit any advantage to the abductor gained by the passage of time. Without derogating from the importance of speed as a key operating principle, a Central Authority or its intermediary needs to exercise some discretion in resolving any conflict between taking action promptly or speedily, and allowing time to negotiate an amicable resolution of the matter or a voluntary return...” 2.4.5 Commitment to achieving the goals of the Convention “If personnel are committed to achieving the goals of the Convention, they will: be professional and objective in dealing with applications; not be influenced by issues of nationalism, gender bias, class or racial prejudice; ...” 6.8 Enforcement “The real success of the Convention as a remedy for child abduction can be measured, not by the number of return orders made, but by the number of return orders enforced. Unfortunately there is some discrepancy between the two. The enforcement of return orders will be improved if the following matters are addressed in each Contracting State: effective mechanisms for enforcement are included in implementing measures, including implementing legislation; co-operation between the judicial authority and the enforcement agency; clear directions in the return order about how the return arrangements are to be effected; any necessary precautionary measures to reduce the risk of flight by the abductor with the child after the return order is made. In most jurisdictions, the Central Authority is not directly involved in enforcement of return orders, but it will work co-operatively with other agencies and personnel to assist the enforcement process. Legislative enforcement provisions already in effect include: measures for the immediate execution of final orders; directions for specific return arrangements to be made; measures to prevent the child’s re-abduction pending return; punitive measures to discourage avoidance of a return order; authority for coercive detention or use of force; issue of a warrant for the apprehension or detention of the child.” B. European Union law 150. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Brussels II bis Regulation”) reads as follows: “... (12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility. (13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court. ... (17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained. ... (21) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required. ...” Article 10 “Jurisdiction in cases of child abduction In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; (ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i); (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7); (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.” Article 11 “Return of the child 1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter “the 1980 Hague Convention”), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. ... 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. ... 8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with ... [Article 42] below in order to secure the return of the child ...” Article 28 “Enforceable judgments 1. A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there. ...” Article 41 “Rights of access 1. The rights of access ... granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin...” Article 42 “Return of the child 1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable. 2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if: (a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; (b) the parties were given an opportunity to be heard; and (c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures. The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning return of the child(ren)). The certificate shall be completed in the language of the judgment.” Article 47 “Enforcement procedure 1. The enforcement procedure is governed by the law of the Member State of enforcement. 2. Any judgment delivered by a court of another Member State and ... certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State...” Article 50 “Legal aid An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in the procedures provided for in Articles 21, 28, 41, 42 and 48 to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for by the law of the Member State of enforcement.” Article 60 “Relations with certain multilateral conventions In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation: ... (e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 151. The applicants complained of a breach of their right to respect for their family life under Article 8 of the Convention because of the way the proceedings for the second applicant’s return to Germany had been handled in Lithuania. The applicants also argued that the decision-making process in Lithuania had been politicised, and that this had further compounded their situation and had been in breach of Article 6 § 1 of the Convention. 152. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018); and taking into account its case-law on the subject (see, for example, Sylvester v. Austria, nos. 36812/97 and 40104/98, § 77, 24 April 2003; Karadžić v. Croatia, no. 35030/04, § 67, 15 December 2005; Gobec v. Slovenia, no. 7233/04, § 105, 3 October 2013; and Adžić v. Croatia, no. 22643/14, § 68, 12 March 2015), considers in the circumstances of the present case that the applicants’ complaints under Article 6 § 1 of the Convention must be regarded as absorbed by their principal complaint under Article 8 thereof. The case thus falls to be examined only under the last-mentioned Article, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The parties’ submissions (a) The Government 153. The Government maintained that the first applicant had not exhausted the domestic remedies, given that he had not initiated any proceedings against the bailiff as regards the latter’s actions or inaction. They noted that, unlike the first applicant, I.R. had appealed against almost all the bailiff’s procedural acts. The bailiff had nevertheless made efforts to cooperate with the first applicant and had refused the “myriad” requests from I.R. to have execution proceedings suspended and had also attempted to fine her. In the Government’s view, the bailiff could therefore not be reproached for failure to execute the Court of Appeal decision of 15 March 2007 (see paragraph 26 above) for the second applicant’s return. 154. The Government further noted that it was I.R. who had asked the Lithuanian courts not to recognise the Oranienburg District Court decision of 20 June 2007 granting the first applicant permanent custody of the second applicant and ordering the second applicant’s return to Germany (see paragraph 92 above). The Government thus considered that the first applicant had failed to bring that particular German court’s decision to the attention of the bailiff in Lithuania, notwithstanding the fact that by that time I.R. had already manifested a lack of good will to comply with the decisions obliging her to hand over the child to the first applicant. The Government also considered that the first applicant could have presented the German court’s decision of 20 June 2007 ‒ as confirmed by the Brandenburg Regional Court’s decision of 20 February 2008 ‒ directly to the Lithuanian bailiff for execution. The Government admitted, however, that the decision of the Court of Appeal of 15 March 2007 (see paragraphs 19-21 above), and the aforementioned German court decisions in compliance with Regulation (EC) No. 2201/2003 obliging the mother of the child to return her to the father, were to be regarded as overlapping and subject to the same enforcement. 155. The Government also considered that, if the first applicant considered that the decision-making in his case had been politicised in Lithuania, this being in breach of Article 6 § 1 of the Convention, he had failed to bring this to the attention of the domestic courts. They pointed out that the applicant had been supported by professional lawyers throughout the court proceedings in Lithuania, and that the fact that the first applicant lived outside Lithuania did not exempt him from the obligation to exhaust the domestic remedies (they relied on Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, ECHR 2010). 156. Alternatively, the Government considered that the applicants’ complaints were manifestly ill-founded. (b) The applicants 157. The first applicant pointed out that he had not been dissatisfied with the actions of the bailiff. In fact, it had been the second applicant’s mother who had opposed the child’s return to Germany. Accordingly, he himself had seen no reason to challenge the bailiff’s decisions or actions, which had been in his interests, even though those decisions and actions had not brought about the desired result, namely the two applicants’ reunion. 158. The first applicant also highlighted that both the Court of Appeal decision of 15 March 2007 (see paragraphs 19-21 above) and the Oranienburg District Court decision of 20 June 2007 (see paragraph 93 above) had ordered the second applicant’s return. As far as the enforcement of the former decision was concerned, the Lithuanian courts ‒ in cooperation with I.R. and, above all, the Prosecutor General ‒ had “impressively demonstrated” that they had not been interested in a swift enforcement of the child’s return. Accordingly, given that enforcement of the domestic – Lithuanian – court’s judgment had not been successful, he had no reason for assuming that the same enforcement procedure on the basis of the German court’s decision of 20 June 2007 would be any more encouraging. He also noted that the Government had failed to explain why the enforcement of the certificate under Article 42 of Regulation (EC) No. 2201/2003 might have been more promising than the enforcement of a return decision in accordance with the Hague Convention. The enforcement of the certificate issued by the German court pursuant to Article 42 of Regulation (EC) No. 2201/2003 would have met the same resistance as the enforcement of the Lithuanian Court of Appeal decision of 15 March 2007 regarding the second applicant’s return on the basis of the Hague Convention. It should also be mentioned that the Lithuanian courts had repeatedly suspended the enforcement proceedings, including during the procedure concerning non-recognition of the certificate issued under Article 42 of Regulation (EC) No. 2201/2003, making those enforcement measures dependent on the preliminary ruling from the ECJ. 159. The applicants did not specifically comment regarding the Government’s objection that they had not raised the issue of the politicisation of their case before the Lithuanian courts. They observed, however, that the first applicant had approached all the institutions from which he could have expected some measure of assistance, including the President of the Republic, the Ombudsman for Children’s Rights, the Ministry of Justice, the Klaipėda child care authority, and the European Commission. 2. The Court’s assessment 160. The Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70 and 71, 25 March 2014, and Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, no. 31566/13, §§ 35 and 36, 17 January 2017, with further references). 161. On the facts of the case, the Court firstly notes that it was I.R. who appealed against the bailiff’s actions when the latter attempted to execute the Court of Appeal decision that the second applicant be returned to the first applicant’s custody (see paragraphs 31-32 above). It does not find unreasonable the first applicant’s argument that, as the bailiff had taken a number of measures to locate the second applicant and thus acted in his interests (see paragraphs 28-30 above), the first applicant was not obliged to bring any court proceedings against him. This is supported by the Government’s own argument that the bailiff’s actions were beyond reproach and that most of the bailiff’s decisions had been in the first applicant’s favour, rather than in favour of I.R. (see paragraph 153 above and paragraph 179 below; see also paragraph 214 below). 162. As to the second aspect of the Government’s objection, the Court points out ‒ and this has been acknowledged by the Government ‒ that at the time when the Oranienburg District Court delivered its judgment of 20 June 2007 ‒ which, moreover, was not final but had been appealed against by I.R. ‒ the enforcement proceedings on the basis of the Hague Convention and the Lithuanian Court of Appeal decision of 15 March 2007, initiated by the first applicant, had been ongoing in Lithuania. That being so, the Court does not consider that the first applicant had an obligation also to bring to the Lithuanian bailiff’s attention the intermediary decision by the Oranienburg District Court of 20 June 2007, which, all the more so, did not become final until 20 February 2008. In the particular circumstances of this case, the Court also shares the applicant’s hesitation that enforcement proceedings on the basis of Article 42 of Regulation (EC) No. 2201/2003 would have been any more promising than those on the basis of the Hague Convention and the Court of Appeal decision of 15 March 2007. Indeed, both sets of execution proceedings had been suspended by the President of the Supreme Court unilaterally or by the Supreme Court (see paragraphs 73, 79 and 94 above). Moreover, as the Government themselves acknowledged, and as it can be understood from the decisions of the Court of Appeal, which consistently refused to examine I.R.’s requests to suspend the proceedings for the second applicant’s return (see paragraph 93 above), those two decisions, namely the Lithuanian Court of Appeal’s decision of 15 March 2007 and the Oranienburg District Court of 20 June 2017, had overlapped and had been subject to the same enforcement. In this context the Court also observes that in September 2007, when the Court of Appeal was deciding whether or not to examine I.R.’s request for the certificate issued by the Oranienburg District Court not to be recognised, the first applicant was in fact in Lithuania, where he was liaising with the bailiff who was about to enforce the Court of Appeal decision of 15 March 2007 (see paragraphs 26 ‑ 31 above; contrast Manic v. Lithuania, no. 46600/11, §§ 109 and 110, 13 January 2015). 163. Accordingly, the Government’s objection that, by not having appealed against the bailiff’s actions or by not having submitted to him an additional request to directly execute the Oranienburg District Court’s decision of 20 June 2007 the first applicant did not exhaust the available domestic remedies, must be dismissed. 164. The Court also considers that the admissibility of the applicants’ complaint that the decision-making in their case had been politicised is inherently linked to the merits of their grievances under Article 8 of the Convention. It therefore joins this complaint to the merits. 165. The Court lastly finds that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties (a) The applicants 166. The applicants argued that the Lithuanian authorities’ actions when handling the case for the second applicant’s return to Germany had been in breach of Article 8 of the Convention. 167. The applicants firstly considered that the Lithuanian State could not renege on its liability by claiming that the case concerning the second applicant’s return was the first case of its kind in Lithuania and that it did not have any practical experience in such cases. For the first applicant, the second applicant was also his first and ‒ above all ‒ only child, who had been abducted to a foreign country and for whose release he had been struggling in vain for two and a half years, which amounted to a considerable loss in their relationship. 168. The first applicant did not rule out that initially he would have agreed to an amicable solution, had I.R. permitted him to take part in the upbringing of the child and to keep in touch with her. It had never been his intention to enforce only his own interests, but rather to find the solution that was in the best interests of the child. The mother of the child, however, had not only kidnapped the child, but had also failed to respond to the father’s proposed peaceful dispute resolution, and, with the help of the Lithuanian State institutions, had created such an “(un)lawful and inhuman circus”, that allowing the child to grow up in Lithuania had in his view become unthinkable. A country in which public institutions clearly deny the equal rights of a father and a mother was not a country in which the second applicant should grow up. Ultimately, leaving the child with her mother in Lithuania was not justifiable for the father ‒ at least at that point in time ‒ since he himself had been vilified by the child’s mother, the Lithuanian press, as well as by the politicians. In those circumstances the first applicant was sure that he would have lost his daughter forever had he not continued fighting. He considered that in such circumstances the continued stay of the child in Lithuania was not compatible with the child’s welfare. 169. From the applicants’ point of view, the Lithuanian authorities had not done their best to resolve the case in an appropriate manner. In fact, instead of supporting both of the applicants’ lawful interests ‒ which had been confirmed by court decisions ‒ or trying to convince the child’s mother to return the child peacefully, they had worked against the child’s father ‒ and thus expressly against the child’s interests ‒ in “an apparently misunderstood form of sympathy for the mother of the child as a mother and as a Lithuanian woman”. From the State institutions, however, one could and should expect more, in particular that they should act in an objective and impartial manner in assessing the interests of the child. 170. The applicants pointed out that, after the first applicant had started court proceedings in Lithuania regarding his daughter’s return under the Hague Convention, as early as in December 2006 the Klaipėda child care authority had already expressed the view that I.R. would have its support because she was the child’s mother and a child’s mother, as such, could not be an abductor (see paragraph 36 above). The first applicant asserted that those statements to the press had been made public before the authority had even spoken to him and that it was also clear from those statements that the Klaipėda child care authority not only tolerated child abduction but even advocated it. 171. Afterwards, having recognised that this was a case of international child abduction, the child’s mother had reacted dramatically, advancing her cause by obtaining unlawful assurances, promises, and moral and financial assistance from State officials such as the Minister of Justice, members of the Seimas, the Klaipėda child care authority, the Ombudsman for Children’s Rights, and prosecutors, to name but a few. All those players had offered I.R. options ‒ including financial aid ‒ designed to make effective enforcement virtually impossible. Their actions had been inappropriate and counterproductive, rather than demonstrating restraint in the matter. The first applicant thus considered that the main aim of the Lithuanian authorities had been to force him to “desist” from taking the child back to Germany. He also underlined that without such support from the authorities, I.R. would not have had the opportunity to obstruct proceedings for the second applicant’s return and her actions as regards obtaining suspension of the enforcement proceedings would not have been “crowned with success”. In such circumstances the bailiff’s opportunities for enforcing the court decision were virtually non-existent. The Government misconstrued this when, even though it was in fact the sole responsible entity, it perceived I.R. to be acting as a private person and rejected any responsibility on the part of the State for the “disastrous conduct” of the proceedings. As a result, although the return decision had been taken as early as 15 March 2007 (see paragraphs 19-21 above), it was of no help to the applicants since the enforcement thereof had remained ineffective. Ultimately, a non ‑ enforceable title was no more useful than no title at all, and the German courts’ decision had thus been “thwarted”. 172. Furthermore, although the Lithuanian State should have ensured that its legal and institutional bodies had been trained to handle this type of procedure ‒ namely child return under the provisions of the Hague Convention ‒ those State institutions, instead of preventing the abusive lawsuits brought by I.R., had condoned her unlawful behaviour. For the applicants, the greatest blame in that connection lay with the Prosecutor General ‒ who had submitted repeated requests to reopen the court proceedings ‒ and with the Supreme Court and its President, who on multiple occasions had for spurious reasons suspended the enforcement of both the Lithuanian and the German courts’ decisions ordering the second applicant’s return. With regard to the Supreme Court, the applicants also specifically criticised its decision of July 2008 to order a psychological expert opinion two years after the child’s involuntary separation from the first applicant even though it was aware of the fact that I.R. had been retaining the child in Lithuania illegally throughout that time, disconnected from the first applicant. 173. As regards the speediness of the court proceedings in child return cases, the applicants also pointed out that the ECJ had been in a position within a period of eight weeks ‒ which included conducting proceedings entailing the participation of several interested European Union Member States and thus an extremely complex situation involving multilingualism and oral presentations ‒ to pronounce a preliminary ruling and to deliver a written judgment (see paragraphs 94-103 above). After the very clear ruling by the ECJ, the Supreme Court had required yet a further six weeks to implement the ECJ’s judgment in a separate domestic decision. For the applicants, it was unjustifiable that it had taken two and a half years to resolve his case in Lithuania, a period of time that contradicted the principle that cases concerning child care should not be protracted ‒ a fact which was also emphasised by the ECJ. 174. The first applicant also pointed out that, despite the German courts’ judgments, it had not been possible for the two applicants to arrange family cohabitation from 21 July 2006 to 20 October 2008. He submitted that, in total, during those two years, only three personal meetings had taken place – in December 2006, in January 2008 and in September 2008 – over a total of 66 hours, and with intervals of eleven and nine months between those meetings. The first applicant also stated that until the Supreme Court’s ruling of 25 August 2008 (see paragraphs 106 and 107 above) the two applicants had been able to see each other for only 36 hours during a two ‑ year period. Moreover, these meetings had taken place under the supervision of I.R. or the Ombudsman for Children’s Rights or the Klaipėda child care authority and had been further complicated by the fact that language barriers had been created in the meantime, since the first applicant was fluent only in German, and the second applicant spoke only Lithuanian. In such circumstances, one could not talk in terms of family life having existed, or even any form of cohabitation, despite the fact that the first applicant had sole custody rights in respect of the second applicant. In this context the first applicant was also dissatisfied that the Klaipėda child care authority and the Ombudsman for Children’s Rights had not been able or willing to make arrangements for more frequent contact between the first applicant and the second applicant, in spite of the former’s repeated requests. 175. The applicants underlined that their right to respect for their family life had been violated not only due to ineptness of the Lithuanian courts and institutions, but also because of “massive public and media-related, country ‑ wide hostility” against the first applicant. 176. The applicants also pointed out that even after the legitimate return of the second applicant to Germany, the first applicant had had to face criminal proceedings in Lithuania. They pointed out that a criminal prosecution had been opened against him not only at the request of I.R., but also at the request of a State institution, namely the Klaipėda child care authority. 177. In his observations to the Court of 21 December 2016, the first applicant lastly asserted that at that time (namely December 2016) the second applicant was an exceptionally good student and athlete, and a self ‑ confident girl participating in many hobbies and extra-curricular activities. He pointed out that this was the result not only of his and the German child care authorities’ efforts, but also thanks to “self-moderation of I.R.”, who at some point had recognised that the second applicant could no longer live with her in Lithuania for legal reasons. According to the first applicant, due to a fresh danger of abduction, only protected or accompanied interaction could be arranged in the first three years after the child’s return to Germany. By 2016 though, the mother had unlimited interaction with the child, who spent every alternate weekend and half of the German school holidays with I.R. This was possible because, in spite of all previous allegations and statements before the Lithuanian courts, the child’s mother had in fact moved back to Germany in 2010, had married there for the third time and was now living in the same town as the first applicant. The son, whom I.R. had asserted that she could not take with her to Germany and could not leave in Lithuania, had been left in Lithuania in 2010. He visited the second applicant regularly in Germany, but lived alone in Klaipėda. The first applicant thus insisted that all the arguments put forward to prevent the return of the second applicant between 2006 and 2008, and which had been employed during the court proceedings in Lithuania and had caused the suspension of the enforcement of the return decision, had therefore been without substance and unfounded, which the first applicant had already made clear during each of the court proceedings at that time. (b) The Government 178. At the outset the Government “felt an urge” to point out that this case had been very famous in Lithuania, given that it was the first time that questions relating to international child abduction and involving domestic law on civil procedure, private international law and European Union law had been raised, questions which required even a referral for a preliminary ruling to the ECJ. Furthermore, the case concerned a particularly delicate issue: a family matter, which involved “a child’s painful return to the father and thus her inevitable separation from the mother”. Such a “sore situation of a family” required the courts − which had been presented for the first time ever with such an exceptional situation involving questions of the Hague Convention, European Union law and the European Convention on Human Rights − to examine the case with particular care and precision, all of which had demanded careful scrutiny and had thus been time-consuming. Moreover, it had required laying the foundations for the formation of proper case-law by way of leading precedent for future situations. 179. The Government admitted that the case at hand had been a very particular one, and that therefore it had been widely commented on by the mass media and had gained the attention of the public, including many politicians. The case, involving such complex questions of law and a sensitive factual situation, posed many questions even for professional judges. Needless to say that somewhat wider repercussions in the media and by politicians had been inevitable. However, professional judges were both required and perfectly able to dissociate themselves from that kind of material and from all external influences of whatsoever nature. Even so, they could not ignore I.R.’s arguments, since she was one of the parties in the civil case, and to do so would have risked possibly undermining her interests. The Government also considered that the materials of the case did not substantiate the applicants’ allegations about the possible politicisation of the case or undue influence on the courts, or those courts being biased against the first applicant. In fact, given the seriousness of the case, the courts had given careful scrutiny to both parties’ complaints and had employed every possible measure, including referral to the ECJ for a preliminary ruling, in order to arrive at lawful and well ‑ founded decisions. During the court proceedings in Lithuania the first applicant had been represented by a professional lawyer of his choice and had also been fully involved in those proceedings, taking part in the court hearings, and submitting claims and appeals. Moreover, most of the bailiff’s decisions had been in the first applicant’s favour, rather than in favour of I.R. The applicant’s allegation that the decision-making in his case had been unfair was therefore merely his subjective perception. The Government thus were of the view that the fact that the case was of great interest to society, the media and politicians did not necessarily mean that it had been politicised, or that the courts which heard the case had been anything other than impartial and independent. In sum, the decision-making process had not been flawed but had satisfied the requirements of the Convention. 180. Whilst acknowledging that the decision-making process in the applicants’ case, taken as a whole, could be considered to have been time ‑ consuming, the Government considered that the delays had not been unreasonable or unjustified. The scrupulousness of the Lithuanian courts in conducting a detailed analysis in the best interests of the child and balancing those interests against the overall family situation, with the aim of tackling major difficulties in relation to the enforcement of those decisions, should be regarded as outweighing the individual interests of the two applicants. It was true that two major procedural steps – firstly, the decision of the President of the Supreme Court of 22 October 2007 to suspend the execution of the second applicant’s return (see paragraph 73 above) and, secondly, the referral of the case to the ECJ (see paragraph 94 above) – had delayed the resolution of the case. The Government pointed out, however, the necessity of bearing in mind the principle that it is first and foremost for the national courts themselves to interpret the provisions of domestic law, and that their interpretation may not be questioned unless there has been a flagrant violation of the domestic law (they relied on DMD GROUP, a.s., v. Slovakia, no. 19334/03, § 61, 5 October 2010). To that end the Government considered that the decision of the Supreme Court of Lithuania to accept appeals on points of law by I.R. and by the Prosecutor General regarding the reopening of the civil proceedings had been adopted in compliance with Articles 363 and 372 of the Code of Civil Procedure (see paragraph 136 above). Moreover, the child’s best interests, also in the light of Article 13 § 2 (b) of the Hague Convention, had been the principle guiding the Lithuanian courts, which, in the Government’s view, had acted promptly in adopting their final decisions. In fact, as early as November 2006 the State Child Rights and Adoption Service had submitted to the Klaipėda District Court the conclusion that the return of the second applicant would not breach her interests, and it had maintained that position throughout the court proceedings − a position that favoured the first applicant’s interests rather than those of I.R. However, the mother had shown “hostility and resistance” and made “extraordinary efforts”, having recourse to each and every legal remedy available to her, submitting convincing arguments which the courts found themselves obliged to verify. At the same time the courts had adopted numerous related interim decisions whilst still putting all their efforts into examining the case as quickly as possible and ultimately adopting all final decisions in the first applicant’s favour. The Government asserted that the Lithuanian authorities should therefore not be held responsible for the situation about which the two applicants complained because those authorities had acted in a most diligent and balanced manner. 181. In response to the first applicant’s accusations that the Prosecutor General had abused his position, the Government felt it necessary to explain to the Court that the Prosecutor General had acted on the basis of I.R.’s request (see paragraph 64 above). It also had to be noted that under Article 365 § 2 of the CCP the Prosecutor General had the right to apply to a court as regards reopening when he was protecting the public interest. The Government also disputed the applicants’ suggestion that I.R.’s interests had been unjustly furthered in Lithuania because the Minister of Justice P.B. had promised her financial aid. Contrary to the first applicant’s beliefs, I.R. had concluded a contract for her representation with a private lawyer (see paragraph 25 above) in May 2007, whereas her meetings with the Minister of Justice had taken place only later (see paragraphs 52, 56 and 62 above). For the Government, and in any event, the State guaranteed legal aid so that individuals would not be prevented from seeking justice even if they had no financial means. Moreover, under Article 50 of Regulation (EC) No. 2201/2003 the first applicant would have been eligible for free legal aid in Lithuania, but he had chosen to hire a private lawyer instead (see paragraph 150 above). 182. As to the inquiry by the European Commission into the reasons why the procedures laid down in Community law had not been implemented (see paragraph 81 above), the Government pointed to the response from the Ministry of Justice explaining that the courts had been independent in administering justice, and that State institutions as well as politicians had been prohibited from interfering in the courts’ activities (see paragraph 83 above). The Government submitted that the answer from the Ministry of Justice had apparently satisfied the European Commission, because the latter had not instituted proceedings against Lithuania before the ECJ. 183. The Government also considered that, in any event, the decision of the Lithuanian Court of Appeal of 15 March 2007 and that of the Oranienburg District Court of 20 June 2007 had been enforced on 20 October 2008 when the first applicant had taken the second applicant away with him “in a drastic way” (see paragraph 112 above). 184. Lastly, in their observations of 14 March 2017, and having noted the applicants’ overview of the current family situation, the Government were “glad to know” that in such a difficult situation as the present one the first applicant and I.R. “had finally overcome emotional hurdles and established a mature relationship focussing on the best interests of the child, that is, those of the second applicant”. They referred to the Court’s case-law indicating that, obviously, a certain amount of time had to pass before parents could arrive at reasonable decisions (the Government cited Pascal v. Romania, no. 805/09, § 85, 17 April 2012). However, in the Government’s view, the present state of affairs did not invalidate the arguments used during the proceedings that had taken place between 2006 and 2008. The Government still saw that the Lithuanian authorities had acted in compliance with the law and within the margin of appreciation given to them in such cases. 2. The Court’s assessment 185. The general principles regarding the relationship between the Convention and the Hague Convention, the scope of the Court’s examination of international child abduction applications, the best interests of the child and the procedural obligations of the States, are laid down in the Court’s Grand Chamber judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 93-102 and 107, ECHR 2013) and in a number of other judgments concerning proceedings for the return of children under the Hague Convention (see, among the most recent authorities, Vilenchik v. Ukraine, no. 21267/14, § 43, 3 October 2017 and the case-law cited therein). The Court has held, in particular, that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 1969, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131 and the case-law cited therein; as to fundamental rights and the principle of mutual trust within the EU, see Avotiņš v. Latvia [GC], no. 17502/07, §§ 46-49, ECHR 2016). 186. In the instant case, the primary interference with the applicants’ right to respect for their family life may not be attributed to an action or omission by the respondent State, but rather to the action of the first applicant’s former wife and the second applicant’s mother, a private individual, who retained the second applicant in Lithuania (see K.J. v. Poland, no. 30813/14, § 52, 1 March 2016). 187. That interference, however, placed the respondent State under a positive obligation to secure for the applicants their right to respect for their family life, which included, where appropriate, taking measures under the Hague Convention with a view to ensuring their prompt reunion (see Adžić, § 92, and, more recently, Vilenchik, § 45, both cited above). 188. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 99, ECHR 2012). In all decisions concerning children their best interests should be the paramount consideration (see Neulinger and Shuruk, cited above, § 135). 189. As regards the Hague Convention proceedings, the Court has emphasised that Article 8 of the Convention requires that domestic courts carry out a careful analysis of the matter and make a ruling giving specific and sufficiently detailed reasons in the light of the circumstances of the case. This would enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it (see, mutatis mutandis, X v. Latvia, cited above, § 107). The Court has also held that where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by EU law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law (see Avotiņš, cited above, § 116). (a) As to the domestic courts’ conduct until 15 March 2007 190. The Court observes that the assessment of the child’s best interests carried out by the Lithuanian courts at least at the beginning of the first applicant’s Hague Convention proceedings did indeed revolve around the question of whether returning the child to Germany into her father’s care and separating her from the mother would disturb the child’s sense of security and have a negative impact on her emotional state. 191. Firstly, questions to this effect were put to experts from the State Child Rights and Adoption Service with a view to obtaining the conclusion which later served as the basis of the Lithuanian courts’ assessment of the applicability of the exceptions under Article 13 (b) of the Hague Convention (see paragraphs 15 and 145 above). Those experts in fact stated that the second applicant’s return to Germany would not place her in an intolerable situation, provided that her interests were protected upon her return to Germany, whilst also pointing out the absence of any proof that the first applicant would be incapable of taking care of his daughter (see paragraph 15 above). In this context the Court also reiterates its position that the exceptions to return under the Hague Convention must be interpreted strictly. Thus the harm referred to in Article 13 (b) of the Hague Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test. Indeed, as the Court concluded in the case of X v. Latvia, the notion of “grave risk” cannot be read, in the light of Article 8 of the Convention, as including all the inconveniences linked to the experience of return: the exception provided for in Article 13 (b) concerns only the situations which go beyond what a child might reasonably bear (see X v. Latvia, cited above, § 116, see also G.S. v. Georgia, no. 2361/13, § 56, 21 July 2015, with further references). 192. The first applicant’s Hague Convention request was dismissed by the Klaipėda Regional Court, whose main line of reasoning rested on three arguments: firstly, that the child could be harmed by separation from her mother because the latter might be arrested, secondly, that I.R.’s son had a psychological ailment and refused to return to Germany, and thirdly, that the second applicant could move to Germany only after a decision regarding her custody had been taken (see paragraph 17 above). Hence, the first-instance court concluded that there was a high probability that her return to Germany would cause her serious psychological harm. 193. The Court notes that in its decision of 15 March 2007 the Court of Appeal rejected the lower court’s arguments, holding that the second applicant’s suffering would not exceed the normal stress linked with relocation from one parent to another such that she would be placed in an intolerable situation (see paragraph 20 above). The appellate court held that the retention of the child outside her habitual place of residence in Germany was wrongful within the meaning of Article 3 of the Hague Convention. The court underlined that the criminal proceedings against I.R. had been discontinued in Germany, and that it had no reason to doubt that the German courts could properly evaluate the factual circumstances relating to the question of custody. Furthermore, the Court of Appeal also pointed out that questions relating to the child’s custody were separate from those regarding the child’s return (see paragraph 19 above). This is also supported by the Court’s own case-law, which has consistently held that issues of custody and access are not to be intertwined in Hague Convention proceedings (see Maumousseau and Washington v. France, no. 39388/05, § 69, 6 December 2007,, and K.J. v. Poland, § 70, cited above; also see the ground rules of Pérez-Vera Report in paragraph 146 above). 194. The Court points out that the Court of Appeal reached that decision five months after the first applicant’s request for his daughter’s return (see paragraphs 14 and 19 above), thus exceeding the six-week time-limit provided for in Article 11 paragraph 2 of the Hague Convention – which applies both to first-instance and appellate proceedings (see paragraph 145 above; also see Adžić, cited above, § 97). That being so, the Court has held that while Article 11 of the Hague Convention does indeed provide that the judicial authorities must act expeditiously, this does not exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for, namely Article 13 (b) in this case (see X v. Latvia, cited above, § 118). In the circumstances of the instant case and concerning this particular set of court proceedings, the Court accepts that the Klaipėda Regional Court and the Court of Appeal had to reconcile their two obligations under Article 8 of the Convention. On the one hand, given the urgency of the situation caused by the child being held in Lithuania unlawfully, they had a positive obligation towards the applicants to act expeditiously (see Vilenchik, cited above, § 53). On the other hand, they had a procedural obligation towards I.R. to effectively examine plausible allegations that returning the second applicant to Germany would expose her to psychological harm, particularly in the light of I.R.’s claim that she could not follow the second applicant to Germany for fear of prosecution, as well as the need to procure and examine the evidence from the child care authority concerning the impact of the child’s separation from her mother. The Court is therefore ready to accept that those questions required detailed and to an extent time-consuming examination by the Klaipėda Regional Court and the Court of Appeal, which was necessary in order to reach a decision achieving the requisite balance between the competing interests at stake, the best interests of the child being the primary consideration. The Court also notes that, pursuant to Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003, the 15 March 2007 Court of Appeal decision on the child’s return pursuant to the Hague Convention was not amenable to appeal on points of law (see paragraph 134 above). Likewise, it notes that after that set of court proceedings, on 13 June 2007 the Klaipėda Regional Court issued a writ of execution, on the basis of which the bailiff was to facilitate the reunion of the two applicants (see paragraph 26 above). The Court therefore finds that the decision-making in the courts, although lengthy under the standards of the Hague Convention, up to this point met the requirements of Article 8 of the European Convention on Human Rights. (b) Developments after those court decisions 195. The applicants argued, however, that − with the help of the Lithuanian institutions − I.R. had created such “an (un)lawful and inhumane circus” in Lithuania that any kind of future for the second applicant in that country had become unthinkable. In that connection the applicants claimed that their case had been politicised, which had led to an unforgivable protraction of the decision-making process regarding the two applicants’ reunion and had threatened to bring about the dissolution of their relationship. 196. The Court emphasises that in the present case it is called upon to examine whether Lithuania has fulfilled its positive obligation to protect the right to family life under Article 8 of the Convention. Under the Convention, this duty is incumbent on all national authorities, not only the courts. Therefore, for the purposes of Article 8, the Court must also take account of material evidence or information that suggests, under the required standard of proof, that national authorities, including members of the executive and legislative branches, attempted to influence or exert pressure within the decision-making process before the courts (see also paragraph 209 below). The Court will examine each of the aforementioned aspects (see paragraph 195 above), which formed the context of the decision-making in the applicants’ case, in turn. (i) Reaction to the Court of Appeal decision of 15 March 2007 197. The Court deems it necessary to recapitulate the sequence of events in the present case. It recalls that as early as December 2006, when the court proceedings concerning the second applicant’s return were pending before the Klaipėda Regional Court, the director of the Klaipėda child care authority publicly proclaimed that she could not comprehend how a mother could be accused of kidnapping her own child, that the child belonged to the mother and that, in a similar situation, she herself would likewise have taken her child away (see paragraph 36 above). 198. Later on, as of summer 2007, the bailiff undertook measures to enforce the Court of Appeal decision of 15 March 2007 by contacting I.R. and asking her to show good will in the matter. The first applicant arrived in Lithuania to take part in those proceedings. As long as those proceedings were not suspended, which was on 22 October 2007 (see paragraph 73 above), the bailiff proceeded with the enforcement of the writ. However, either I.R. could not be found or – for instance in September 2007 − refused to disclose the child’s whereabouts, thus further aggravating the two applicants’ situation by denying the first applicant any contact with his daughter (see paragraphs 28-31 above; also see point 6.8 in paragraph 149 above). The child’s mother instead chose to put all her efforts into garnering public and institutional support for the idea that “in Lithuania mother and child were sacred and inseparable”, an idea which, in her view, had up to that point not been properly considered by the courts (see paragraphs 58 and 61 above). 199. It is quite impossible to overlook that the upsurge in public, institutional and political pressure, which in any case had already been a feature of the applicants’ case (see paragraph 48 above), reached a “particular urgency” (see paragraph 46 in fine above) just at the time when the Lithuanian bailiff was about to execute the Court of Appeal decision of 15 March 2007 and to transfer the second applicant to the first applicant’s custody. Firstly, a petition had been signed − as was considered appropriate by a significant part of Lithuanian population − to support “Luisa”, notwithstanding the German and even the Lithuanian courts’ findings that it was actually in the child’s best interests for her to return to the first applicant in Germany (see paragraph 57 above). The widespread media focus on the case was also acknowledged by the President of the Republic (see paragraph 40 above), and by parliamentarians (see paragraph 51 above). As pointed out by the first applicant in his letter to the Ombudsman for Children’s Rights, R.Š., he had been demonised in the Lithuanian press and letters had been published calling him “a German pig”, “a Nazi”, “fascist” and “a criminal”, and he, his lawyer and the bailiff had also received threats (see paragraphs 53 and 54 above). 200. In addition to the massive interest amongst the public at large, public statements of different sorts were made by various politicians in this connection. In particular, members of the Seimas pleaded that “the State should not remain a bystander ... when human fates were being broken” (see paragraph 51 in fine above) and that “a Lithuanian citizen must be defended”, that “the link between the Mother and the child ” and the “link to the family and the homeland was a great virtue” (see paragraph 46 above), and that one should not remain a bystander when “our children [were being] taken away to foreign countries” (see paragraph 42 above). The Court particularly notes the statements made by child care professionals, firstly the Ombudsman for Children’s Rights, R.Š., revealing that “from the very beginning the position of the Ombudsman’s Office was that the child should be with the mother”, and that “we should search for ways and possibilities to let [the children] remain in Lithuania” (see paragraph 49 above). In similar vein, the director of the Klaipėda child care authority, whose position as regards the applicants’ reunion apparently remained unchanged, confessed to the press that she had tried to persuade the first applicant to renounce his custody rights, but had been unsuccessful (see paragraph 60 above; about her earlier statements see paragraph 36 above). This, for the Court, appears to have been particularly inappropriate, given the maxim that the personnel dealing with the Hague Convention questions should be professional, objective and not be influenced by issues of nationalism, gender or any other prejudice (see point 2.4.5 of the Guide to Good Practice under the Hague Convention in paragraph 149 above). 201. Contrary to what has been suggested by the Government, the politicians’ actions were not confined to merely voicing their opinions in public, which the Government thought the Court should perceive as normal, given society’s interest in the case (see paragraph 179 above). They manifested themselves in much more disquieting forms, which may be seen as concerted efforts to help I.R. to keep the child with her in Lithuania (see also paragraph 211 below). The Court will address those actions below. (ii) Calls for the courts to reopen the case, overt pressure on the bailiff and attempts to tailor legislation to I.R.’s situation 202. Whilst noting that the President of the Republic expressed the view that interference with the actions of the courts when the latter were deciding the question of the second applicant’s return would be unconstitutional and in breach of the courts’ independence (see paragraph 40 above), the Court also observes that, as clearly transpires from their statements and actions, many Lithuanian politicians and State institutions did not share that view. It points to the statements by certain members of the Seimas who openly questioned the lawfulness of the court judgments, considering that they lacked “elementary logic” and were “not humane”, and also asked the Minister of Justice to respond (see paragraph 51 above). Likewise, the Chairman of the Seimas Committee on Human Rights expressed the hope that the courts would have the “decency to reopen the case” for the second applicant’s return should the Prosecutor General’s Office request such reopening (see paragraph 48 above). The Committee and its Chairman also asked the Ministry of Justice to help I.R. in a way that would see the case moved from the German courts to Lithuania (see paragraphs 47 and 48 above). It is also clear that these questions had been discussed by I.R. and the Minister of Justice (see paragraph 56 above). It further transpires that the Minister of Justice encouraged such doubts and kept hope alive in I.R.’s mind for some time, because even after meeting her in summer 2008 he stated that it was important to endorse the Supreme Court’s hesitation as to whether German courts had jurisdiction in her case (see paragraph 62 above). The Court finds that such statements can only be seen as calls to establish “artificial jurisdictional links” to legalise the unlawful factual situation brought about by I.R. (see points 11-14 of the Pérez-Vera report, cited in paragraph 147 above). 203. The Court further points out that on 7 September 2007 six members of the Seimas exerted pressure on the bailiff not to execute the court decision, even though under Lithuanian law the bailiff is independent when executing his functions and should abide by the law and international treaties (see paragraphs 39 and 141 above). Later that month, forty ‑ one members of the Seimas asked the Constitutional Court to examine whether the provision of the Law on the Implementation of EC Regulation No. 2201/2003 which did not allow an appeal on points of law was not in breach of the Constitution (see paragraph 41 above). The Court is mindful that the members of the Seimas exercised their right to challenge, in the procedure of abstract review of constitutionality, the compliance of Lithuanian legislation with the Constitution granted to them under domestic law. However, it is plain that the Seimas members’ request for such a Constitutional review was tailored to the specific situation of the second applicant, since they openly stated that the reason for it was “the German courts’ decisions” which led to “our Lithuanian children ... [being] taken away to foreign countries” (see paragraph 42 above). It is true that the initiative by the Seimas members did not come to fruition. However, the Constitutional Court discontinued the legal proceedings regarding the constitutionality of that act on the grounds that a new Law on Implementation of the EU Regulation had been passed (see paragraphs 43 and 134 in fine above). (iii) Admonition of employees of the State Child Rights and Adoption Service 204. The Court now turns to another aspect of politicians’ involvement in the decision-making in the applicants’ case. As correctly noted by the Government (see paragraph 180 above), at the very beginning of the Lithuanian court proceedings under the Hague Convention for the second applicant’s return, the State Child Rights and Adoption Service had submitted to the Klaipėda District Court the conclusion that it would be in the child’s best interests to return to Germany. The child care experts supported this view at the Klaipėda District Court hearing (see paragraph 15 above), and the Court of Appeal was of the same view in its final decision of 15 March 2007 (see paragraph 19 above). However, according to the documents in the Court’s possession, that institution and its employees were later severely criticised by politicians who not only interrogated them in person, but also publicly rebuked them for having been “ambivalent”, “unpatriotic”, “lacking simple humanity”, and being “stubborn” for not having “defended a Lithuanian citizen” (see paragraph 46 above). On this last point the Court points out that at the time it was only I.R. who had Lithuanian citizenship, which allows it to conclude that the politicians’ remarks implied that the State Child Rights and Adoption Service’s employees should defend her, notwithstanding the principle that it was the best interests of the child which should prevail. For the Court, such overt instructions to the child care specialists showed obvious disregard for child care employees’ duty to be professional and objective in dealing with applications for a child’s return, and, above all, not to be influenced by issues of nationalism and gender bias (see point 2.4.5 of the Guide to Good Practice under the Hague Convention in paragraph 149 above). It is also plain that the politicians’ statements were not without purpose, since they clearly pointed out that the State Child Rights and Adoption Service’s conclusions “affected court decisions”, and that it was therefore paramount for those conclusions to be “just” and accurately reflect the “social situation” of the second applicant as perceived by those politicians (see paragraphs 38 and 45 above). The Seimas Committee on Human Rights as a body, as well as parliamentarians acting by themselves, went as far as to urge the State Child Rights and Adoption Service’s employees to “wash off [their] tainted tunic” (see paragraph 46 above), also suggesting that their superiors at the Ministry of Social Security and Labour should examine whether those employees were fit for their duties (see paragraph 38 above) and should also order those employees to produce another conclusion, which would be objective in those politicians’ view (see paragraph 45 above). The Chairman of the Seimas Committee on Human Rights also expressed the hope that those employees would “obey” the instructions from the Ministry (see paragraph 48 above). It also transpires from the Supreme Court’s ruling of 25 August 2008 that the experts were eventually reprimanded (see paragraphs 106 and 107 above). 205. Apart from the fact that such developments clearly show political pressure on the courts and child care employees charged with the decision-making in the applicants’ case, even if indirectly, the Court also considers that such statements by the Lithuanian State institutions and the politicians unmistakeably demonstrate that they had substituted their own views as to the best interests of the child for those of the child care professionals and undermined their expert judgment. Indeed, the politicians had not shied away from making statements suggesting that the second applicant’s return to Germany and her separation from her mother and brother would put her in an intolerable situation and possibly cause her irreparable damage (see paragraphs 38 and 45 above), whereas it is the immediate return of the abducted child that prima facie corresponds to the specific concept of “the child’s best interests” (see paragraph 146 in fine above; see also point 1.5.3 of the Guide to Good Practice under the Hague Convention in paragraph 149 above). In this context, the Court particularly notes the inappropriate stance of the Chairman of the Seimas Committee on Human Rights, who, notwithstanding the domestic and international courts’ decisions long in force, suggested that the first applicant should move to Lithuania on the grounds that I.R. had been “a mother beyond reproach” and the second applicant would not then be separated from her mother and her brother (see paragraph 63 above). The Court observes that those statements by the said politician were made already after and notwithstanding the ECJ’s preliminary ruling, and also after the Supreme Court’s ruling, pursuant to which I.R. should have executed the German courts’ decisions and returned the second applicant to Germany (see paragraphs 106 and 107 above). (iv) Recognising the second applicant’s Lithuanian citizenship and financial support to I.R. 206. On the facts of the case the Court further notes that − in the context of a generally heightened atmosphere in Lithuania and with the aim of “defending a Lithuanian citizen”, namely “the Mother” (see, for instance, paragraph 46 above) − certain Lithuanian State officials and politicians also considered another legal avenue for strengthening legal links between the second applicant and Lithuania (see points 11-15 of the Pérez-Vera Report, cited in paragraph 147 above), namely, that the likelihood of I.R.’s keeping the child in Lithuania would be improved if the second applicant were a Lithuanian citizen. The Court refers in particular to the prosecutor’s comments that “if [the second applicant] were a Lithuanian citizen, maybe it would be possible to help her somehow”, and “we must have recourse to all the possibilities” (see paragraph 59 above). The Court further observes that members of the Liberals’ Union political faction in the Seimas asked the President of the Republic to grant the second applicant Lithuanian citizenship by way of exception and “as a matter of particular urgency” (see paragraph 46 in fine above). The Court points out that, under Article 16 of the Law on Citizenship in force at that time, by way of exception Lithuanian citizenship could indeed be granted for the purpose of “strengthening Lithuania’s power and authority in the international community” (see paragraph 132 above). The facts of this case undoubtedly demonstrate that the second applicant’s story had indeed attracted international attention, but in a somewhat different sense (see paragraphs 81 and 100). Be that as it may, that political initiative apparently failed to persuade the President of the Republic, who by then had already expressed his confidence in the courts’ ability to examine the second applicant’s case objectively, and pointed out that it would have been unlawful for him to be involved in the decision ‑ making in this case in any form (see paragraph 40 above). 207. That being so, as openly admitted by the Chairman of the Seimas Committee on Human Rights, the Committee and he personally had been working on the planned amendments to the Law on Citizenship, tailoring it to the second applicant’s situation and, specifically, to “help I.R.” (see paragraph 91 above, see also, mutatis mutandis, Baka v. Hungary [GC], no. 20261/12, § 149, 23 June 2016). Afterwards, the Seimas amended Article 9 § 1 of the Law on Citizenship to allow persons in the second applicant’s situation – namely children born outside Lithuania but one of whose parents was a Lithuanian citizen − to be recognised as Lithuanian citizens (see paragraph 133 above). The Court cannot but note that two days after that legislative amendment had come into force, I.R. asked the Lithuanian authorities to issue the second applicant with a Lithuanian passport, and her request was granted (see paragraph 88 above). Although the first applicant later appealed against that decision, conceding that his daughter had the right to be a Lithuanian citizen but nonetheless highlighting that certain rules for recognition of citizenship had to be observed, in particular, that pursuant to the German courts’ decisions it was the first applicant who had been solely granted the right to deal with questions of his daughter’s citizenship and that I.R. therefore had not had the right to lodge such a request (see paragraph 89 above), by a decision of January 2009 the Migration Department ignored his arguments and dismissed his complaint (see paragraph 90 above). It observes, specifically, that about one month prior to that decision the same Migration Department had ruled that agreement from both parents was necessary for a citizenship request (see paragraph 87 above). Lastly, the Court notes that the first applicant had not argued having appealed against the Migration Department’s decision of January 2009. Even so, it takes account of the first applicant’s argument that he had not been against his daughter also having Lithuanian citizenship as such (see paragraph 89 above) and, above all, of the fact that the applicant’s complaint to this Court concerning the citizenship-recognition procedure in Lithuania had been only one element of his case for the child’s return, which had in any case taken place de facto on 20 October 2008 (see paragraph 112 above). The Court also points out that the first applicant had no standing to complain about procedures in Lithuania such as the amendment of the Law on Citizenship, which the Court has already found to have been tailored to accommodate the specific situation of I.R. and the second applicant. Accordingly, the Court rejects the Government’s argument of non-exhaustion of the domestic remedies regarding this particular aspect of politicisation of the case. 208. The Court lastly turns to the applicants’ argument that during the proceedings for the second applicant’s return I.R. received support and assurances from the Minister of Justice, which only served to complicate the two applicants’ situation still further. Although the Government pointed out that both the first applicant and I.R. had private lawyers during the court proceedings in Lithuania, which for the Government showed that they were on an equal footing, the Court cannot entirely agree with this. Firstly, it points to the public statements made by the Minister of Justice that the State ‑ guaranteed legal aid office should guarantee I.R. free legal assistance, as far as possible (see paragraph 52 above). Taken in the context of other public remarks made by the Minister of Justice (see paragraph 62 above) as well as declarations by other politicians that the Court has already considered, such statements could not have instilled in the first applicant much confidence in the Lithuanian legal system. The Court also finds undisputed the fact that support for I.R.’s cause was forthcoming right up to the level of the Lithuanian Government, which had gone as far as to pass a resolution allocating I.R. a sum of money to cover her lawyer’s costs for the proceedings at the ECJ (see paragraph 97 above). It is apparent from I.R.’s lawyer’s statements to the press that his position was one of support for I.R.’s argument that the second applicant should stay with her in Lithuania (see paragraph 101 above). This fact is also confirmed by the Advocate General in her View (see paragraph 98 above). I.R. had also declared that the ECJ was her last hope (see paragraph 96 above). Neither can the Government argue before this Court that granting money to pay for I.R.’s lawyer’s services in the Luxembourg Court was beneficial for the Lithuanian legal system, in the light of their argument that the applicants’ case set a precedent regarding how such cases were to be handled in Lithuania in future (see paragraph 178 above). It is sufficient to note that the Lithuanian Government’s interests in Luxembourg in fact were represented by the European Law Department (see paragraph 101 above), whatever its position may have been. That being so, the Court cannot but conclude that, notwithstanding the principle that the rights of the spouses in the family are equal (see paragraph 130 above), by having financially supported one of the spouses the State of Lithuania thus acted on her behalf. (v) Conclusion as to the behaviour of and analysis conducted by the domestic authorities 209. The Court, in assessing evidence, has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. The Court’s role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to issues of evidence and proof. The Court adopts those conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts in their entirety and from the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. It has been the Court’s practice to allow flexibility in this respect, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved. In certain instances, only the respondent Government have access to information capable of corroborating or refuting the applicant’s allegations; consequently, a rigorous application of the principle affirmanti, non neganti, incumbit probatio is impossible (see, mutatis mutandis, Baka, cited above, § 143, with further references, and, mutatis, mutandis, Merabishvili v. Georgia [GC], no. 72508/13, § 311, 28 November 2017, and the case-law cited therein; in this context also see paragraph 196 above). 210. In the light of the foregoing (see paragraphs 197-208 above), and although the Government invoked the absence of any tangible evidence that the decision-making in the applicants’ case had been politicised (see paragraph 179 above), the Court cannot but find otherwise. In the Court’s view, having regard to the sequence of events in their entirety, rather than as separate and distinct incidents, there is prima facie evidence of politics being involved in the applicants’ case (see, mutatis mutandis, Baka, cited above, § 148). This is corroborated not only by I.R.’s own admission (see paragraphs 61 and 110 above), but also by the numerous documents submitted by the applicants which refer to a widespread political onslaught against the first applicant so that he would “desist” (see paragraph 171 above) from his efforts to be reunited with his daughter in Germany. These include not only articles in the Lithuanian media, official documents published on various Lithuanian Government Internet sites, but also texts adopted by the European Union institutions (see paragraphs 80, 81 and 83 ‑ 86 above). The Court further notes that I.R. ran for election to the Seimas the same year on the list of a political party whose member – the Chairman of the Seimas Committee on Human Rights – had been supporting her throughout the proceedings for the second applicant’s return (see paragraph 50 above). The Court also points out that support for I.R. came from across the political spectrum of the Seimas, since parliamentarians belonging to different political parties expressed their support for I.R. That being so, and noting that the first applicant in any case had raised the matter of his daughter’s return with the Lithuanian courts as well as with other Lithuanian institutions, and, this being futile, also brought the matter to the attention of the European Commission, the Court does not reasonably see how else he could have effectively defended his right to respect for his family life. Accordingly, the Government’s objection of non-exhaustion of domestic remedies (see paragraphs 155 and 164 above) must be dismissed. 211. The foregoing findings demonstrate that, with the exception of the President of the Republic (see paragraphs 40, 111 and 202 above), the Lithuanian authorities ‒ and this includes politicians, child care officials, and prosecutors ‒ failed to ensure fair decision-making in the applicants’ case in the phase of execution of the Court of Appeal judgment of 15 March 2007, and their actions may be taken as suggesting that they did not even care about appearances. It goes without saying that their efforts, aimed at creating a negative atmosphere around the legal actions of the first applicant and constituting direct attempts to interfere in those proceedings, were unacceptable in a system based on the rule of law. The Court also finds that those activities undoubtedly alerted the judges and other officials that their steps in the applicants’ proceedings were being closely monitored, which it finds particularly worrying (see, mutatis mutandis, Kinský v. the Czech Republic, no. 42856/06, §§ 95 and 98, 9 February 2012). The Court also considers that, by attempting to make Lithuania “the State of refuge” (see points 11-15 of the Pérez-Vera Report, cited in paragraph 147 above), those authorities misled I.R. by nourishing her hopes and thus making her situation, and that of the two applicants, much more severe (see paragraph 174 above). On this last point the Court notes that, as stated by the applicants, after the second applicant’s return to Germany and over a period of time, normal communication between the child and both of her parents had been restored with the help of the German authorities (see paragraph 177 above). This statement is also supported by the German authorities’ findings (see paragraph 125 above). 212. In the light of the foregoing and applying its standard of proof (see paragraph 196 above), the Court concludes that the Lithuanian authorities did not ensure the fair decision-making process in the applicants’ case in the phase of execution of the Court of Appeal judgment of 15 March 2007 that was indispensable for the discharge of the respondent State’s duties under Article 8 of the Convention (see, mutatis mutandis, Yordanova and Others v. Bulgaria, no. 25446/06, § 137, 24 April 2012, and Iosub Caras v. Romania, no. 7198/04, § 41 in limine, 27 July 2006). (c) The overall length of the decision-making procedure in the applicants’ case (i) The decision-making in the civil courts 213. Apart from the requirement of due examination, the cases under the Hague Convention also require urgent handling, as the passage of time can have irremediable consequences for relations between children and a parent who does not live with them (see Iosub Caras, cited above, § 38). The delays in the procedure alone may enable the Court to conclude that the authorities did not comply with their positive obligations under the Convention (see, for example, Shaw v. Hungary, no. 6457/09, § 72, 26 July 2011). 214. In the present case, the first applicant asked the Lithuanian authorities to return the child on 30 October 2006 (see paragraph 14 above). The Court has already acknowledged that up until 15 March 2007 the length of proceedings before the Klaipėda Regional Court and the Court of Appeal could be seen as reasonable, given the questions those two courts had to examine (see paragraph 194 above). In the circumstances of this case, and taking into account the actions of the bailiff who attempted to execute the Court of Appeal decision for the second applicant’s return, the Court is also prepared to accept that, until he was prevented by the President of the Supreme Court on 22 October 2007 (who unilaterally adopted a ruling suspending the execution of the Court of Appeal decision of 15 March 2007; see paragraphs 34 and 73 above), the bailiff acted in the two applicants’ interests with the requisite diligence (see paragraphs 28-31 above). The Court also notes that when attempting to execute the Court of Appeal’s decision for the second applicant’s return, the bailiff did not give up in the face of I.R.’s failure to cooperate but instead took the procedural measures which were available to him, announcing a search for I.R., and thus circumventing her avoidance of the return order (see paragraph 29 above; also see point 6.8 of the Guide to Good Practice under the Hague Convention, cited in paragraph 149 above). Indeed, the applicants had no reason to reproach the bailiff (see paragraph 157 above). 215. The applicants argued that their reunion pursuant to the provisions of the Hague Convention had subsequently been obstructed by the fervent efforts of I.R., whose obstructive actions not only were not effectively prevented by the Lithuanian authorities but, conversely, received active support through the actions of the Prosecutor General and the Supreme Court, and the latter’s President in particular. In this connection the Court is mindful of the Pérez-Vera Report which highlighted the fact that, in situations such as the one at hand, it is the hope of the person who is responsible for the child’s unlawful removal from or non-return to his or her habitual residence to obtain a right of custody from the authorities of the country to which the child has been taken. It also frequently happens that the person retaining the child tries to obtain a judicial or administrative decision from the State of refuge which would legalise the factual situation which he or she has brought about (see points 11 and 14 of the report, cited in paragraph 147 above). Likewise, as stated by the Advocate General, “a child can have no interest in being dragged from one Member State to another by a parent in the quest for a court which he or she supposes will be the most sympathetic to his or her cause” (see point 88 of the Advocate General’s View, cited in paragraph 99 above). However, it appears that this is precisely what occurred in this case. 216. The Court recalls that after consideration of the case by courts at two levels of jurisdiction, I.R. asked the Prosecutor General to apply to the Supreme Court so that the court proceedings which had been terminated by the Court of Appeal decision of 15 March 2007 could be reopened (see paragraph 64 above). Somewhat later, in summer 2007, the Prosecutor General and I.R. personally submitted requests for the court proceedings to be reopened, relying on the reasons that appear to be analogous to those already examined during the first set of proceedings that ended on 15 March 2007. However, the Klaipėda Regional Court refused to accept them for examination and the Court of Appeal upheld that decision, pointing out that its earlier ruling of 15 March 2007 was not amenable to reopening (see paragraphs 65-68 above). It also transpires from the Lithuanian courts’ decisions that the first applicant’s plea that the reopening of civil proceedings for the child’s return would contradict the very essence of the goal set out by Regulation (EC) No. 2201/2003 – namely that such cases should be decided without undue delay (see paragraph 69 above) – was heard, since I.R.’s and the Prosecutor General’s appeals on points of law were later examined and rejected by the Supreme Court, which ruled that no appeal on points of law was possible in proceedings involving a child’s return under Regulation (EC) No. 2201/2003. The Supreme Court also pointed out that its ruling was “final and not amenable to appeal”, and refused to suspend the enforcement proceedings (see paragraph 70 above), the latter fact having been noted by the Advocate General (see paragraph 100 above; point 39 of the View). 217. In this context the Court does not overlook the public intervention in October 2007 by the Chairman of the Seimas Committee on Human Rights that the Prosecutor General could ask for a reopening of the proceedings on the grounds that new circumstances had materialised (see paragraph 48 above). That being so, on 22 October 2007 and on the basis of a fresh appeal on points of law by the Prosecutor General ‒ who pointed out that at that moment in time the proceedings regarding the second applicant’s return had been ongoing since the bailiff and the police had effectively taken measures to locate the second applicant and who based his request for suspension on arguments which the Prosecutor General himself saw as merely “theoretical” (see paragraphs 71 and 72 above) ‒ the President of the Supreme Court decided unilaterally to suspend the execution of the final decision of the Court of Appeal (see paragraph 73 above). Bearing in mind the circumstances of this case and contrary to the Government’s suggestion (see paragraph 181 above), the Court does not consider it to be significant whether the request for reopening was lodged directly by I.R. or by the Prosecutor General acting at her request. In the Court’s view, the President of the Supreme Court perceived his powers as allowing him to overrule the Supreme Court’s chamber’s decision on the same issue (see paragraphs 70 and 139 above) and used the opportunity created by those requests to halt the execution of the Court of Appeal decision and then to allow the Supreme Court to re ‑ examine evidence which had already been established by the final and binding decision (see paragraphs 19-21 above; see also Mitrea v. Romania, no. 26105/03, § 29, 29 July 2008). Indeed, although the President of the Supreme Court stated that the subject matter of the appeal on points of law was not the return of the child, the reasons advanced by him when granting the Prosecutor General’s request were related to precisely the circumstances – namely the child’s age, her linguistic abilities, her attachment to the mother and her brother, and Lithuania being the country where she had spent most of her life – which had either already been examined by the Klaipėda Regional Court and Court of Appeal (see paragraphs 17, 19 and 20 above) or had been influenced by the passage of time – as represented by the second applicant’s unlawful stay in Lithuania ‒ a factor which, under the Court’s constant case-law, as well as under international law instruments, must not be allowed to confer any advantage on the abductor (see, for example, Neulinger and Shuruk, cited above, §§ 119 and 140; also see point 1.5.3 of the Guide to Good Practice under the Hague Convention in paragraph 149 above). The Court notes the applicants’ position that the President of the Supreme Court misused his powers in order to help I.R. (see paragraphs 74 and 75 above). In this context the Court observes that in July 2008 the Supreme Court asked the child care authority to provide a fresh report on the second applicant’s situation (see paragraph 104 above). However, this was a matter concerning questions of fact and not those related to the points of law, only the latter falling within the Supreme Court’s competence under domestic law (see paragraphs 136-138 above). Most of this had already been pointed out by the first applicant, who also underscored that the suspension of the court decision for transfer would further aggravate the applicants’ situation, since it meant that they would not see each other, a development which, taking into account the second applicant’s young age, was detrimental to their relationship and placed the child in an intolerable situation (see paragraph 74 above). However, the first applicant’s attempts to challenge the ruling of the President of the Supreme Court, also drawing his attention to the harm that the two applicants’ separation from each other might cause, were futile (see paragraphs 74 and 75 above). 218. The Court reiterates its previous findings regarding the politicians’ attempts to help I.R. keep the second applicant in Lithuania by taking steps to amend the Law on the Implementation of EC Regulation No. 2201/2003 in such a way that an appeal on points of law could be permitted in child return cases (see paragraph 208 above). In the circumstances, the Court cannot but agree with the applicants’ view that by using an interlocutory decision to undermine the validity of the main court decision (see paragraphs 19-21 above) the President of the Supreme Court used the reopening procedure as a disguised appeal in order to undermine the res judicata principle (contrast Vilenchik, cited above, § 55), thereby halting the execution of that main court decision. 219. The Court observes that a second delay during the Lithuanian court proceedings occurred when the Supreme Court decided to suspend them in order to ask the ECJ for a preliminary ruling (see paragraph 94 above). Given that no doubt had been expressed as to the authenticity of the certificate from the German court and given that (even before the certificate concerning the child’s return was issued) the Lithuanian courts had already duly considered the allegations made by I.R. (see paragraphs 14-24 above, also see Avotiņš, cited above, § 116), once seised, the Lithuanian courts in principle simply had to order the child’s return; to further delay the return only risked causing harm to the child (this was pointed out by the Advocate General, see paragraph 100 above; for the analogous position of the ECJ, see paragraph 102 above). In the Court’s view, the fact that the Supreme Court asked the ECJ to hear the case urgently and the latter applied its accelerated procedure (see paragraphs 95 and 102 above) does not exempt the respondent State from its liability. Indeed, as pointed out by the Advocate General and the ECJ, by that time the proceedings for the second applicant’s return had already been ongoing for nearly two years and the outcome of those successive suspensions had been “totally incompatible with the fundamental aims of the [Hague] Convention and the Regulation” (see paragraphs 100 and 103 above). On the basis of the facts of the case, the Court takes the view that the suspensions that followed I.R.’s applications for the proceedings to be reopened (see paragraphs 76, 78 and 79 above) were particularly aptly dubbed “procedural vagaries” that had not been prevented by the Supreme Court in spite of its duty to act expeditiously (see Article 11 of the Hague Convention, cited in paragraph 145 above; also see, for example, Maire v. Portugal, no. 48206/99, § 74, ECHR 2003 ‑ VII; point 104 of the Pérez-Vera Report cited in paragraph 147 above and paragraph 148 above). The Court finds that those “procedural vagaries” failed to achieve “the fundamental aim of depriving the actions of the abducting parent of any practical or juridical consequences by ensuring the child’s prompt return”, and completely disregarded the fundamental aims of not only the Hague Convention and Regulation (EC) No. 2201/2003 (see §§ 24 and 40 of the Advocate General View cited in paragraph 100 above) but also Article 8 of the Convention. In this context the Court also has regard to the fact that, whilst it took the ECJ less than nine weeks to deliver its preliminary ruling, the Supreme Court afterwards took a further six weeks to terminate the court proceedings regarding I.R.’s and the Prosecutor General’s request for reopening (see paragraphs 102 and 106 above). 220. To make matters worse, the two applicants’ hardship in Lithuania continued even after the ECJ’s preliminary ruling and the Supreme Court’s rulings of 25 August 2008. The Court turns to the next point argued by the Government, namely that on 20 October 2008 the first applicant had taken the second applicant with him “in a drastic way” (see paragraphs 112 and 183 above). The Court observes, however, that the first applicant, who by that time had sole rights of custody over the second applicant (see paragraph 92 above), had in fact arrived in Lithuania as early as 24 September 2008. He had not only liaised with the bailiff over the transfer (see paragraph 112 above) but had also been in contact with the child care authorities and psychologists, and had sought to communicate with the child, in order to avoid having the court decision executed by force (see paragraphs 120 in limine, 121, 122 and 127 above). As testified by the first applicant during the criminal proceedings, upon his arrival in Lithuania in September 2008 his contact with his daughter had been either limited or had taken place in the presence of I.R., who had been hostile to him (see paragraph 121 above). This fact was supported by the director of the Klaipėda Pedagogical Psychological Service, who testified that at that time I.R. not only did not wish to reach any compromise but was determined only to fight and to “go until the end”. The director also testified having heard comments that I.R. was about “to harm herself and the [the second applicant]” (see paragraph 120 in fine above); this fear had also been shared by the first applicant (see paragraph 121 above). Given the background as to how the case had been handled in Lithuania up to that point, the Court understands the first applicant’s statement that he thought he would have had to wait a number of years to be reunited with his daughter if he had not acted as he did (see paragraph 114 above). In this context the Court also points to the facts established during the criminal proceedings when I.R. had herself acknowledged that she had not been preparing the child for her return to Germany and that she had been prepared to “fight until the end” (see paragraph 123 above). She had also asserted not having “laid down [her] weapons” (see paragraph 110 above), notwithstanding that 20 October 2008 was the date set for the child’s transfer by the bailiff (see paragraph 127 above). The Court also notes that the first applicant’s fears that the court decisions ‒ even those reached in Lithuania by the Supreme Court on 25 August 2008 ‒ did not provide a sufficiently sound basis for him to be reunited with his daughter in Germany, which could be illustrated, inter alia, by the fact that the Chairman of the Seimas Committee on Human Rights suggested that I.R. had been “a mother beyond reproach” and that the first applicant should move to Lithuania (see paragraphs 63 and 205 above), and this despite the fact that he had already been vilified and demonized there (see paragraph 80 above). The Court observes that it was in these circumstances that the first applicant had acted in an extemporaneous fashion and taken the second applicant away with him (see paragraphs 112 and 113 above). The Court notes that, although the first applicant had sole custody rights in respect of the second applicant, after taking her with him to Germany he was pursued by Lithuanian police officers and I.R. (see paragraph 114 above), and also had to face criminal proceedings in Lithuania, during which certain coercive measures – such as the European Arrest Warrant – were ordered against him by the Lithuanian authorities (see paragraph 116 above). All this was on the basis of the Lithuanian prosecutor’s understanding that by taking the second applicant with him to Germany the first applicant had breached I.R.’s rights, even though she had no custody rights in respect of her daughter at that time (see paragraph 92 above). A month later the decision to detain the first applicant was quashed by the Klaipėda Regional Court (see paragraph 117 above) and one year later the Lithuanian prosecutor discontinued the proceedings by observing the German and Lithuanian courts’ decisions regarding the applicants’ right to be reunited and stating that the first applicant’s actions did not amount to a crime (see paragraphs 125-129 above). Even so, the Court does not need to take a position on the first applicant’s actions on 20 October 2008 and related subsequent developments (see paragraphs 112 and 113 above). (ii) Final observations 221. Lastly, the Court is satisfied that, as it transpires from the psychological report procured in Germany and quoted by the Lithuanian prosecutor, the second applicant’s separation from her mother, except for the normal reaction of sadness caused by separation from a parent, did not have any long-lasting impact (see paragraph 125 above). As noted by the applicants in their observations to the Court, the second applicant led a fulfilling life in Germany and because of her “self-moderation”, I.R. was also able to move to Germany and to share in her daughter’s life, having left her son, who by that time was a grown-up, in Klaipėda, with whom she has regular contact (see paragraph 177 above). It is not for the Court to speculate on whether this fact alone refutes the arguments employed by I.R. during the court proceedings held in Lithuania between 2006 and 2008, as the two applicants have suggested. Even so, the Court gives certain weight to the applicants’ submission that this “self ‑ moderation” on the part of I.R. would hardly have been possible during the years when the Lithuanian authorities, both political and legal, demonstrated persistent support to her and even misled her about the possibility of retaining the second applicant in Lithuania, and regardless of the German and Lithuanian court decisions and Lithuania’s international obligations (see paragraphs 197-208 above, also see Avotiņš, cited above, §§ 46-49). (iii) Conclusion as to overall length of the decision-making in the applicants’ case 222. In the light of the above the Court finds that the time it took for the Lithuanian courts to reach the final decision in the applicants’ case failed to respond to the urgency of their situation. (d) General conclusion as to the alleged violation of Article 8 223. The foregoing considerations are sufficient to enable the Court to conclude that, whilst the initial decision-making of the applicant’s case by the domestic courts met the requirements of Article 8 of the Convention (see paragraph 194 in fine above), the later conduct of the Lithuanian authorities, including political interference into what was a pending court case, as well as the manner in which the case was subsequently handled by the domestic courts and other authorities, fell short of what was required from the State under that provision. There has accordingly been a violation of Article 8 of the Convention in respect of both applicants. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 224. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 225. The applicants claimed to have suffered grave hardship not only because of the Lithuanian authorities’ failure to arrange their reunion despite the clear decisions of the German courts, but also because of massive public, media-related, country-wide hostility, including public humiliation by high-ranking politicians and State officials, aimed at the first applicant. The applicants therefore considered that they were eligible for compensation in respect of non-pecuniary damage, but left the amount to the Court’s discretion. 226. The applicants also claimed a sum of 35,997 euros (EUR) in respect of pecuniary damage, this being the amount which the first applicant had had to pay to a bank by way of interest on a loan he had taken out for the purposes of building a house. The first applicant implied that he would not have had to pay that interest if the court proceedings in Lithuania had not compelled him to spend money on lawyers. 227. The Government did not wish to speculate on what amount of compensation for non-pecuniary damage would be fair in the applicants’ case. Even so, they considered that, as the outcome of the situation, “was in the applicants’ favour”, the finding of a violation in itself would be sufficient. 228. The Government disputed the applicants’ claim for pecuniary damage as unjustified. 229. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. However, the Court considers that the applicants suffered distress as a result of the impossibility of enjoying each other’s company for a significant period of time which was caused by a particularly serious violation of their right to respect for their family life. Making an assessment on an equitable basis as required by Article 41, the Court awards the applicants jointly EUR 30,000 under this head. B. Costs and expenses 230. The applicants sought EUR 76,089 which the first applicant had had to pay for the services of German and Lithuanian lawyers during the Lithuanian domestic court proceedings concerning the second applicant’s return, including the examination of the matter before the ECJ and the criminal case against the first applicant in Lithuania. The applicants also pointed out that, because of the complexity of the case, cooperation between German and Lithuanian lawyers had been essential and the first applicant could therefore not be accused of having been excessive in retaining their services. The applicants noted that in Lithuania alone, thirty-four lawsuits had been conducted concerning the return of the second applicant. Those included not only the actual return request, but also numerous proceedings regarding the suspension of those proceedings, measures undertaken by the bailiff, and criminal law measures. The applicants provided bills submitted by those lawyers, including detailed particulars as to their hourly fees, the number of hours worked, and explanations as to which procedural actions were involved and on which date the lawyers’ fees had to be paid. In addition, the first applicant claimed EUR 722 that he had had to pay for the psychological expert opinion and legal literature in Germany. 231. The applicants also submitted proof of having incurred expenses of EUR 1,806 for translation costs, EUR 2,335 for the first applicant’s travel expenses from Germany to Lithuania, and EUR 1,005 for hotel accommodation in Lithuania during the court proceedings, as well as EUR 348 for postal and communication expenses. Lastly, the applicants also claimed the sum of EUR 10,925 which the first applicant had incurred in connection with the proceedings before the Court, and which he had had to pay to the German lawyer. The applicants provided a bill from their German lawyer, which included an hourly breakdown of those costs. 232. The Government firstly submitted that they were not convinced of the necessity of what were, in their view, very high legal costs in respect of the domestic proceedings. They considered that both the German and the Lithuanian lawyers’ claims for their services, including consultations and research work were exaggerated. They also dismissed the documents detailing the lawyers’ fees as not specific enough. Likewise, the Government disputed the applicants’ remaining claims for the costs and expenses which the first applicant had incurred during the domestic courts’ proceedings as being unsupported by evidence and excessive. 233. The Government further disputed the applicants’ claim for legal costs in the proceedings before the Court as being insufficiently proven by evidence and disproportionate. 234. The Court points out that it has already held that the use of more than one lawyer may sometimes be justified by the importance of the issues raised in a case (compare and contrast Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 56, ECHR 2000 ‑ XI, with further references). The Court cannot neglect the particularly complex nature of this case, the exceptional nature of which was also acknowledged by the Government (see paragraph 179 above), and it therefore accepts that it was necessary for the first applicant to engage the services of all those lawyers specialising in private international, European Union and Lithuanian civil and criminal law who represented the first applicant before the Lithuanian civil courts and the European Court of Justice, and who also assisted him with regard to the criminal proceedings opened against him in Lithuania. The Court does not regard the sum of EUR 10,925 for the services of the applicant’s German lawyer with regard to the proceedings before the Court as excessive (see, for example, Koch v. Germany, no. 497/09, §§ 92-94, 19 July 2012). That being so, and in the light of the documents in its possession, the Court grants the applicants jointly a sum of EUR 76,089 and EUR 10,925 for the legal costs in the domestic and Court proceedings. The Court also awards the applicants EUR 6,216 in respect of the remaining costs and expenses. C. Default interest 235. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in respect of both applicants, finding that, overall, the conduct by the Lithuanian authorities had fallen short of what was required of the State under that provision. It considered in particular that it was clear that the legislature and executive had attempted to influence the decision-making process in favour of the mother, despite the court orders in favour of the father, which should have been rapidly enforced in Lithuania. Among other factors, actions by the Supreme Court and the Supreme Court’s President had led to “procedural vagaries” which had contradicted the aims of international and European Union rules on child custody. |
1,068 | Right to a fair trial (Article 6 of the Convention) | THE LAW I. THE COMPLAINT UNDER ARTICLE 6 § 1 OF THE CONVENTION 14. The applicant alleged that the length of the proceedings had exceeded a “reasonable time” contrary to Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 15. In respect of the first set of proceedings, the period to be considered began on 14 January 1988 and ended on 4 April 1998. It therefore lasted more than ten years and two months for a single level of jurisdiction. In respect of the other sets of proceedings, the period to be considered began on 15 January 1988 and, since the proceedings were still pending as at 27 October 2000, has therefore lasted more than twelve years and nine months for two levels of jurisdiction. A. Admissibility of the complaint based on Article 6 § 1 16. The Government submitted that this complaint should be declared inadmissible within the meaning of Article 35 § 3 of the Convention because Article 6 § 1 did not apply to disputes relating to tax proceedings. In their submission, the proceedings in question did not relate to “a criminal charge”. They pointed out that in Italy enforcement of the tax courts’ judgments was effected according to the procedure used to enforce civil obligations. The amount payable by the applicant could not be converted into a custodial sentence. Only enforcement measures, such as the seizure and possible sale of the debtor’s assets, were available. In respect of the “civil” aspect, the Government pointed out that, in accordance with the established case-law of the Convention institutions, taxation matters concerned only public law. 17. The applicant, for his part, agreed with the Government that the proceedings in question were not criminal. He emphasised, however, the financial aspect of the proceedings, which accordingly concerned a “civil right”. 18. The Court notes that both parties acknowledged that Article 6 did not apply under its criminal head. In respect of the civil head, and despite the existence of the established case-law referred to by the Government, the Court considers that the complaint raises questions of law which are sufficiently complex not to be susceptible of being resolved at the admissibility stage. Accordingly, the determination of this complaint, including the question, raised by the Government, of the applicability of Article 6 § 1 of the Convention, depends on an examination of the merits. 19. That being so, this complaint cannot be declared inadmissible on the ground that it is incompatible ratione materiae with the provisions of the Convention. The Court notes further that no other ground for declaring it inadmissible has been established and that it must therefore be declared admissible. B. Applicability of Article 6 § 1 20. The parties having agreed that a “criminal charge” was not in issue, and the Court, for its part, not perceiving any “criminal connotation” in the instant case (see, a contrario, Bendenoun v. France, judgment of 24 February 1994, Series A no. 284, p. 20, § 47), it remains to be examined whether the proceedings in question did or did not concern the “determination of civil rights and obligations”. 21. The Government argued that Article 6 was inapplicable to the proceedings in question, considering that they did not concern a “civil right”. The existence of an individual’s tax obligation vis-à-vis the State belonged, in their submission, exclusively to the realm of public law. That obligation was part of the civic duties imposed in a democratic society and the purpose of the specific provisions of public law was to support national economic policy. 22. The applicant, for his part, stressed the pecuniary aspect of his claims and contended that the proceedings accordingly concerned “civil rights and obligations”. 23. As it is common ground that there was a “dispute” ( contestation ), the Court’s task is confined to determining whether it was over “civil rights and obligations”. 24. According to the Court’s case-law, the concept of “civil rights and obligations” cannot be interpreted solely by reference to the domestic law of the respondent State. The Court has on several occasions affirmed the principle that this concept is “autonomous”, within the meaning of Article 6 § 1 of the Convention (see, among other authorities, König v. Germany, judgment of 28 June 1978, Series A no. 27, pp. 29-30, §§ 88-89, and Baraona v. Portugal, judgment of 8 July 1987, Series A no. 122, pp. 17-18, § 42). The Court confirms this case-law in the instant case. It considers that any other solution is liable to lead to results that are incompatible with the object and purpose of the Convention (see, mutatis mutandis, König, cited above, pp. 29-30, § 88, and Maaouia v. France [GC], no. 39652/98, § 34, ECHR 2000-X). 25. Pecuniary interests are clearly at stake in tax proceedings, but merely showing that a dispute is “pecuniary” in nature is not in itself sufficient to attract the applicability of Article 6 § 1 under its “civil” head (see Pierre-Bloch v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI, p. 2223, § 51, and Pellegrin v. France [GC], no. 28541/95, § 60, ECHR 1999-VIII; cf. Editions Périscope v. France, judgment of 26 March 1992, Series A no. 234-B, p. 66, § 40). In particular, according to the traditional case-law of the Convention institutions, “There may exist ‘pecuniary’ obligations vis-à-vis the State or its subordinate authorities which, for the purpose of Article 6 § 1, are to be considered as belonging exclusively to the realm of public law and are accordingly not covered by the notion of ‘civil rights and obligations’. Apart from fines imposed by way of ‘criminal sanction’, this will be the case, in particular, where an obligation which is pecuniary in nature derives from tax legislation or is otherwise part of normal civic duties in a democratic society”. (See, among other authorities, Schouten and Meldrum v. the Netherlands, judgment of 9 December 1994, Series A no. 304, p. 21, § 50; Company S. and T. v. Sweden, no. 11189/84, Commission decision of 11 December 1986, Decisions and Reports (DR) 50, p. 121, at p. 140; and Kustannus oy Vapaa Ajattelija AB, Vapaa-Ajattelijain Liitto – Fritänkarnas Förbund r.y. and Kimmo Sundström v. Finland, no. 20471/92, Commission decision of 15 April 1996, DR 85-A, p. 29, at p. 46) 26. The Convention is, however, a living instrument to be interpreted in the light of present-day conditions (see, among other authorities, Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, pp. 24-25, § 53), and it is incumbent on the Court to review whether, in the light of changed attitudes in society as to the legal protection that falls to be accorded to individuals in their relations with the State, the scope of Article 6 § 1 should not be extended to cover disputes between citizens and public authorities as to the lawfulness under domestic law of the tax authorities’ decisions. 27. Relations between the individual and the State have clearly evolved in many spheres during the fifty years which have elapsed since the Convention was adopted, with State regulation increasingly intervening in private-law relations. This has led the Court to find that procedures classified under national law as being part of “public law” could come within the purview of Article 6 under its “civil” head if the outcome was decisive for private rights and obligations, in regard to such matters as, to give some examples, the sale of land, the running of a private clinic, property interests, the granting of administrative authorisations relating to the conditions of professional practice or of a licence to serve alcoholic beverages (see, among other authorities, Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 39, § 94; König, cited above, p. 32, §§ 94-95; Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 29, § 79; Allan Jacobsson v. Sweden (no. 1), judgment of 25 October 1989, Series A no. 163, pp. 20-21, § 73; Benthem v. the Netherlands, judgment of 23 October 1985, Series A no. 97, p. 16, § 36; and Tre Traktörer AB v. Sweden, judgment of 7 July 1989, Series A no. 159, p. 19, § 43). Moreover, the State’s increasing intervention in the individual’s day-to-day life, in terms of welfare protection for example, has required the Court to evaluate features of public law and private law before concluding that the asserted right could be classified as “civil” (see, among other authorities, Feldbrugge v. the Netherlands, judgment of 29 May 1986, Series A no. 99, p. 16, § 40; Deumeland v. Germany, judgment of 29 May 1986, Series A no. 100, p. 25, § 74; Salesi v. Italy, judgment of 26 February 1993, Series A no. 257-E, pp. 59-60, § 19; and Schouten and Meldrum, cited above, p. 24, § 60). 28. However, rights and obligations existing for an individual are not necessarily civil in nature. Thus, political rights and obligations, such as the right to stand for election to the National Assembly (see Pierre-Bloch, cited above, p. 2223, § 50), even though in those proceedings the applicant’s pecuniary interests were at stake (ibid., § 51), are not civil in nature, with the consequence that Article 6 § 1 does not apply. Neither does that provision apply to disputes between administrative authorities and those of their employees who occupy posts involving participation in the exercise of powers conferred by public law (see Pellegrin, cited above, §§ 66-67). Similarly, the expulsion of aliens does not give rise to disputes ( contestations ) over civil rights for the purposes of Article 6 § 1 of the Convention, which accordingly does not apply (see Maaouia, cited above, §§ 37-38). 29. In the tax field, developments which might have occurred in democratic societies do not, however, affect the fundamental nature of the obligation on individuals or companies to pay tax. In comparison with the position when the Convention was adopted, those developments have not entailed a further intervention by the State into the “civil” sphere of the individual’s life. The Court considers that tax matters still form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the community remaining predominant. Bearing in mind that the Convention and its Protocols must be interpreted as a whole, the Court also observes that Article 1 of Protocol No. 1, which concerns the protection of property, reserves the right of States to enact such laws as they deem necessary for the purpose of securing the payment of taxes (see, mutatis mutandis, Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, judgment of 23 February 1995, Series A no. 306-B, pp. 48-49, § 60). Although the Court does not attach decisive importance to that factor, it does take it into account. It considers that tax disputes fall outside the scope of civil rights and obligations, despite the pecuniary effects which they necessarily produce for the taxpayer. 30. The principle according to which the autonomous concepts contained in the Convention must be interpreted in the light of present-day conditions in democratic societies does not give the Court power to interpret Article 6 § 1 as though the adjective “civil” (with the restriction that that adjective necessarily places on the category of “rights and obligations” to which that Article applies) were not present in the text. 31. Accordingly, Article 6 § 1 of the Convention does not apply in the instant case. II. THE COMPLAINT UNDER ARTICLE 14 OF THE CONVENTION Admissibility 32. The applicant also complained that he had been “persecuted by the Italian courts” and relied on Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 33. The Court reiterates that discrimination is not forbidden by the Convention unless different measures are taken in respect of persons in comparable situations (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium”, judgment of 23 July 1968, Series A no. 6, pp. 33-34, §§ 9-10). 34. The applicant has not explained how there has been an infringement of that provision. Accordingly, since this complaint has not been substantiated, the Court considers that there is no appearance of a violation of that provision and that the complaint must therefore be dismissed as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention. | In this case it was incumbent on the Court to review whether, in the light of changed attitudes in society as to the legal protection that fell to be accorded to individuals in their relations with the State, the scope of Article 6 § 1 (right to a fair trial) of the Convention should not be extended to cover disputes between citizens and public authorities as to the lawfulness under domestic law of the tax authorities’ decisions. In this respect, the Court noted that relations between the individual and the State had clearly developed in many spheres during the fifty years which had elapsed since the Convention was adopted, with State regulation increasingly intervening in private-law relations. In the tax field, developments which might have occurred in democratic societies did not, however, affect the fundamental nature of the obligation on individuals or companies to pay tax. In comparison with the position when the Convention was adopted, those developments had not entailed a further intervention by the State into the “civil” sphere of the individual’s life. The Court therefore considered that tax matters still formed part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the tax authority remaining predominant. Accordingly, it found that tax disputes fell outside the scope of civil rights and obligations, despite the pecuniary effects which they necessarily produced for the taxpayer, and held that Article 6 § 1 did not apply in the instant case. |
930 | Impression of independence | ii. relevant domestic law and practice A. Criminal law 1. The Criminal Code 21. The relevant provisions of the Criminal Code read as follows: Article 311 § 2 “Public incitement to commit an offence Where the incitement [to commit an offence] is done by means of mass communication, of whatever type, by tape recordings, gramophone records, newspapers, press publications or other published material, by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled…” Article 312 “Non-public incitement to commit an offence Whosoever expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall be sentenced to between six months’ and two years’ imprisonment and a … fine of between six thousand and thirty thousand liras. Whosoever expressly arouses hatred and hostility in society on the basis of a distinction between social classes, races or religions, or one based on allegiance to a particular denomination or region, shall be sentenced to between one and three years’ imprisonment and a fine of between nine thousand and thirty-six thousand liras. If this incitement is done in a manner likely to endanger public safety, the sentence shall be increased [by one third to one half]. The penalties to be imposed on those who have committed the above-mentioned offences by the means listed in Article 311 § 2 shall be doubled.” 22. A conviction under Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that section may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to Parliament (Law no. 2839, section 11(f3)). In addition, if the sentence imposed exceeds six months’ imprisonment, the convicted person is debarred from entering the civil service, provided that the offence has been committed intentionally (Law no. 657, section 48(5)). 2. The Press Act (Law no. 5680) 23. Additional section 4(1) of the Press Act (Law no. 5680) provides: “Where distribution [of the printed matter whose distribution constitutes the offence] is prevented … by a court injunction or, in an emergency, by order of the Principal Public Prosecutor, to be confirmed by a court, … the penalty imposed shall be one-third of that laid down by law for the offence concerned.” 3. The Prevention of Terrorism Act (Law no. 3713) 24. Law no. 3713 of 12 April 1991, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as “acts of terrorism” or “acts perpetrated for the purposes of terrorism” (sections 3 and 4) and to which it applies. However, the act punishable pursuant to Article 312 of the Criminal Code (see paragraph 21 above) is not among them. 4. The Code of Criminal Procedure 25. Article 318 of the Code of Criminal Procedure provides for the holding of a public hearing in proceedings before the Court of Cassation only where the impugned judgment concerns offences classified as “serious”, such as those punishable by the death penalty or a term of imprisonment of more than ten years. The Court of Cassation’s jurisdiction, according to Article 307 of the Code, is limited to questions concerning the lawfulness and procedural regularity of the first-instance judgment. B. The National Security Courts 26. The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That Law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage: “There may be acts affecting the existence and stability of a State such that when they are committed special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to [give judgment on] a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have [thus] been enacted in advance and that the courts have been created before the commission of any offence …, they may not be described as courts set up to deal with this or that offence after the commission of such an offence.” The composition and functioning of the National Security Courts are subject to the following rules. 1. The Constitution 27. The constitutional provisions governing judicial organisation are worded as follows: Article 138 §§ 1 and 2 “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.” Article 139 § 1 “Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution…” Article 143 § 4 “Presidents, regular members and substitute judges of the National Security Courts shall be appointed for a renewable period of four years.” Article 145 § 4 “The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law...” 2. Law no. 2845 on the creation and rules of procedure of the National Security Courts 28. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows: Section 1 “In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic – whose constituent qualities are enunciated in the Constitution – against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.” Section 3 “The National Security Courts shall be composed of a president and two other regular members. In addition, there shall sit at each National Security Court two substitute members.” Section 5 “The president of a National Security Court, one of the other regular members and one of the substitutes shall be civilian … judges, the other members, whether full or substitute, military judges of the first rank…” Section 6(2), (3) and (6) “The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the special legislation [concerning those posts]. Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years… … If, after an investigation concerning the presidents and regular or substitute members of the National Security Courts conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of a military judge, the duty station of that judge or his duties [themselves] … may be changed in accordance with the procedure laid down in that legislation.” Section 9(1)(a) “The National Security Courts shall try persons accused of the offences defined in (a) [Article] 312 § 2 … of the Turkish Criminal Code…” Section 27(1) “The Court of Cassation shall hear appeals from the judgments of the National Security Courts.” Section 34(1) and (2) “The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences … they may commit in the performance of their duties shall be as laid down in the relevant provisions of the laws governing their professions… The observations of the Court of Cassation and the assessment reports drawn up by Ministry of Justice assessors on judges of the Military Legal Service … and the files on any investigations conducted against them … shall be transmitted to the Ministry of Justice.” Section 38 “A National Security Court may be transformed into a Martial-Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…” 3. The Military Legal Service Act (Law no. 357) 29. The relevant provisions of the Military Legal Service Act are worded as follows: Additional section 7 “The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Act and the Turkish Armed Forces Personnel Act (Law no. 926). (a) The immediate superior competent to carry out assessment and draw up assessment reports for military judges, whether full or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence. …” Additional section 8 “Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and legal advisor of the General Staff, the personnel director and legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…” Section 16(1) and (3) “Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces… … The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the immediate superiors…” Section 18(1) “The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.” Section 29 “The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions: A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties. … B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy. … The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…” Section 38 “When military judges … sit in court they shall wear the special dress of their civilian counterparts…” 4. Article 112 of the Military Criminal Code 30. Article 112 of the Military Criminal Code of 22 May 1930 provides: “It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a [public] official in order to influence the military courts.” 5. Law no. 1602 of 4 July 1972 on the Supreme Military Administrative Court 31. Under section 22 of Law no. 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their promotion and professional advancement. C. Case-law 1. The Supreme Military Administrative Court 32. The Government produced several judgments of the First Division of the Supreme Military Administrative Court setting aside decisions concerning the appointment and promotion of military judges or disciplinary sanctions applied to them. These were the judgments of 31 May 1988 (no. 1988/185), 14 December 1993 (no. 1993/1116), 22 December 1993 (no. 1993/1119), 19 November 1996 (no. 1996/950), 1 April 1997 (no. 1997/262), 27 May 1997 (no. 1997/405) and 3 July 1997 (no. 1997/62). It appears from these judgments that in setting aside the transfer decisions concerned, the First Division gave as its grounds either lack of consent on the part of the person concerned or abuse of the military authorities’ discretionary power. In connection with assessment reports, failure to state reasons or a lack of objectivity on the part of the immediate superior was taken into account. Lastly, in connection with a disciplinary sanction, against which in principle no appeal lies, the First Division held that the acts of which the person concerned stood accused had been incorrectly established and that the sanction was accordingly null and void. 2. The National Security Courts 33. The Government also submitted a number of judgments rendered by National Security Courts relevant to the impartiality of military judges sitting as members of such courts. These were the judgments of 12 September 1995 (no. 1995/171), 27 February 1996 (no. 1996/38), 7 March 1996 (no. 1996/55), 21 March 1996 (no. 1996/70), 2 April 1996 (no. 1996/102), 9 April 1996 (no. 1996/112), 2 May 1996 (no. 1996/141), 9 May 1996 (no. 1996/150), 19 August 1996 (no. 1996/250), 12 September 1996 (no. 1996/258), 19 September 1996 (no. 1996/263), 1 October 1996 (no. 1996/270), 3 October 1996 (no. 1996/273), 8 October 1996 (no. 1996/278), 12 June 1997 (no. 1997/128) and 15 July 1997 (no. 1997/393). Most of these decisions declared the accused guilty but also contained separate opinions by military judges adopting a dissenting opinion with regard to the establishment and classification of the facts, the way sentence was determined or the finding of guilt itself. PROCEEDINGS BEFORE THE COMMISSION 34. Mr Incal applied to the Commission on 7 September 1993. He asserted that he had not had a fair trial in the National Security Court, firstly because it could not be regarded as an independent tribunal, and secondly because it had refused to commute his sentence of imprisonment into a fine on account of his political opinions (Article 6 § 1 of the Convention taken separately and in conjunction with Article 14). He also submitted that by rejecting his request for leave to appear and by omitting to send him a copy of the Principal Public Prosecutor’s opinion on his appeal on points of law the Court of Cassation had breached Article 6 §§ 1 and 3 (b). He further alleged that his conviction for helping to prepare a political leaflet constituted a breach of Articles 9 and 10 and that his temporary disqualification from driving was a degrading punishment contrary to Article 3. 35. On 16 October 1995 the Commission declared inadmissible the complaint relating to the applicant’s disqualification from driving and declared the remainder of the application (no. 22678/93) admissible. In its report of 25 February 1997 (Article 31), it expressed the opinion (a) that there had been a violation of Article 10 (unanimously); (b) that, contrary to Article 6 § 1, the applicant had not had a fair hearing by an independent and impartial tribunal (unanimously); (c) that there had been no violation of Article 6 § 1 taken in conjunction with Article 14 (unanimously); (d) that the fact that the applicant had been unable to reply to the public prosecutor’s opinion had breached Article 6 § 1 (twenty-six votes to five); and (e) that there had been no violation of Article 6 § 1 on account of the fact that the applicant had not appeared in the Court of Cassation (twenty-six votes to five). The full text of the Commission’s opinion and of the partly dissenting opinion contained in the report is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE COURT 36. In their memorial, and later at the hearing, the Government asked the Court to hold that the proceedings complained of had not infringed the rights secured to the applicant by Articles 6, 10 and 14 of the Convention. 37. The applicant asked the Court to hold that Article 6 § 1, Article 9 and Article 10 of the Convention had been breached and to award him just satisfaction under Article 50. as to the law I. Alleged violation of Article 10 of the Convention 38. Mr Incal submitted that his criminal conviction on account of his contribution to preparation of the leaflet in issue had infringed his right to freedom of expression guaranteed by Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The Commission accepted this argument, which the Government contested. A. Existence of an interference 39. The participants in the proceedings agreed that the applicant’s conviction amounted to an interference with the exercise of his right to freedom of expression. That is also the Court’s opinion. B. Justification of the interference 40. Such interference breaches Article 10 except where it is “prescribed by law”, is directed towards one or more of the legitimate aims set out in Article 10 § 2 and is “necessary in a democratic society” to achieve the aim or aims concerned. 1. “Prescribed by law” 41. The participants in the proceedings all accepted that the interference was “prescribed by law”, as the applicant’s conviction had been based on Article 312 §§ 2 and 3 of the Criminal Code and additional section 4(1) of the Press Act (Law no. 5680) (see paragraphs 21 and 23 above). 2. Legitimate aim 42. The Court notes that no argument was presented on this point by the parties to the case. The Commission took the view that in applying Article 312 of the Criminal Code the Turkish courts’ aim in the present case had been to prevent disorder. The Court considers that Mr Incal’s conviction pursued at least one of the legitimate aims set out in Article 10, namely “the prevention of disorder”. 3. “Necessary in a democratic society” (a) Arguments of the participants ( i ) The applicant 43. The applicant submitted that in a pluralist democratic system political parties such as his ought to be able to express their views on the country’s social and political problems. The opinions expressed in the leaflet in issue were based on actual events and were limited to criticism of the discriminatory administrative and economic pressure brought to bear on citizens of Kurdish origin. The authors of the leaflet, of whom he was one, had never intended to advocate separatism and did not seek to foment disorder. Contrary to the findings of the judges at his trial, it was not a factual description of the situation in a country which provoked hatred and hostility but the fact that it was not possible for reactions to problems of general interest to be submitted to the public by the political parties. Mr Incal challenged the necessity of the interference and emphasised the fact that the leaflets in question had not been distributed. In any event, the penalty had been completely disproportionate, especially as his conviction had led to his being permanently debarred from the civil service and from certain activities within associations, trade unions or political organisations, in the latter case in the capacity of leader, founder member, parliamentary candidate, mayor or town councillor. (ii) The Government 44. The Government asserted that, despite the anger expressed in the leaflet concerned, the operations aimed at closing down booths unlawfully erected on land belonging to others and driving out street traders met the requirements of the relevant legislation and regulations, which had no other purpose than the prevention of disorder and the protection of the rights of others. However, in the racial perspective of the leaflet prepared by the applicant, who was then a member of the HEP, a party working in favour of Kurdish separatism, the measures thus taken were presented as the destruction of Kurdish citizens’ houses with a view to depriving them of all means of subsistence. Through its aggressive and provocative language the leaflet in question had been likely to incite citizens of “Kurdish” origin to believe that they suffered from discrimination and that, as victims of a “special war”, they were justified in acting in self-defence against the authorities by setting up “neighbourhood committees”. In addition, the population of İzmir in general, and its shopkeepers in particular might have been tempted to think that those who were truly responsible for their social and economic troubles were their “Kurdish” fellow-citizens and that the street traders – all “Kurdish” according to the leaflet – might endanger their well-being. Such a message was not consistent with the calls to “brotherhood”, which were designed only to enable the leaflet’s authors to evade their criminal responsibility. With reference to the analysis of the situation in Turkey made by the Court in the Zana v. Turkey judgment of 25 November 1997 ( Reports of Judgments and Decisions 1997-VII), the Government observed that in the present case the National Security Court had noted a dangerous tendency in İzmir, which had the potential to create an explosive situation, as in south-eastern Turkey, where there had been an intolerable increase in terrorism in the years 1992 and 1993. In such a case the wide limits of criticism acceptable in political debate and the high level of protection enshrined by the Court’s case-law on the question were completely without relevance. In that context, Mr Incal, who was a lawyer by profession, had overstepped the normal limits of political controversy by disregarding his “duties” and “responsibilities”. He had tried to incite an ethnic group to rise against the officials and authorities of the State at a time when the PKK, a terrorist separatist organisation, had intensified its atrocities prompted by racial hatred. In such a social climate, which made it extremely easy to stir up internal dissent, or even civil strife, the Turkish authorities had had no other choice than to seize the leaflets in issue and to punish the applicant as one of those responsible. (iii) The Commission 45. The Commission agreed for the most part with the applicant’s arguments. It emphasised that the leaflet in issue only drew attention in general terms to the existence of a “Kurdish problem” and did not contain any element of incitement to violence. Considering that an opponent of official ideas and positions must be able to find a place in the political arena, it expressed the opinion that Mr Incal’s conviction had not been necessary in a democratic society. (b) The Court’s assessment 46. As the Court has often observed, the freedom of expression enshrined in Article 10 constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 22, § 42, and the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 25, § 52). While precious to all, freedom of expression is particularly important for political parties and their active members (see, mutatis mutandis, the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports 1998-I, p. 22, § 46). They represent their electorate, draw attention to their preoccupations and defend their interests. Accordingly, interferences with the freedom of expression of a politician who is a member of an opposition party, like the applicant, call for the closest scrutiny on the Court’s part (see the Castells judgment cited above, ibid.) 47. In the present case the İzmir National Security Court based its decision to convict Mr Incal on a leaflet which it held to make out the offence defined in Article 312 of the Criminal Code, namely non-public incitement to commit an offence (see paragraph 21 above). 48. In the light of the above considerations, the Court must now consider the leaflet’s content in order to determine whether it justified Mr Incal’s conviction. In that connection, the Court reiterates that its task, in exercising its supervisory jurisdiction, is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. In so doing, it must satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the Vogt judgment cited above, p. 26, § 52). 49. The National Security Court held that, by describing the State as terrorist, by drawing a distinction between citizens even though all of them were of Turkish nationality and by criticising certain municipal measures as operations in a special war, the authors of the leaflet had knowingly incited the people to hatred and hostility and, to that end, had urged them to have recourse to illegal methods. 50. The Court notes that the relevant passages in the leaflet criticised certain administrative and municipal measures taken by the authorities, in particular against street traders. They thus reported actual events which were of some interest to the people of İzmir. The leaflet began by complaining of an atmosphere of hostility towards citizens of Kurdish origin in İzmir and suggested that the measures concerned were directed against them in particular, to force them to leave the city. The text contained a number of virulent remarks about the policy of the Turkish government and made serious accusations, holding them responsible for the situation. Appealing to “all democratic patriots”, it described the authorities’ actions as “terror” and as part of a “special war” being conducted “in the country” against “the Kurdish people”. It called on citizens to “oppose” this situation, in particular by means of “neighbourhood committees” (see paragraph 10 above). The Court certainly sees in these phrases appeals to, among others, the population of Kurdish origin, urging them to band together to raise certain political demands. Although the reference to “neighbourhood committees” appears unclear, those appeals cannot, however, if read in context, be taken as incitement to the use of violence, hostility or hatred between citizens. 51. Admittedly, as the Court has already noted in other circumstances (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 58), it cannot be ruled out that such a text may conceal objectives and intentions different from the ones it proclaims. However, as there is no evidence of any concrete action which might belie the sincerity of the aim declared by the leaflet’s authors, the Court sees no reason to doubt it. 52. There remains, therefore, the question whether, in the light of the foregoing considerations, the applicant’s criminal conviction can be regarded as necessary in a democratic society, that is to say whether it met a “pressing social need” and was “proportionate to the legitimate aim pursued”. 53. The freedom of political debate is undoubtedly not absolute in nature. A Contracting State may make it subject to certain “restrictions” or “penalties”, but it is for the Court to give a final ruling on the compatibility of such measures with the freedom of expression enshrined in the Convention (see the Castells judgment cited above, p. 23, § 46). In the present case the Government pleaded the “duties” and “responsibilities” with which Article 10 links exercise of the freedom of expression (see paragraph 44 above). However, these do not dispense with the obligation to ensure that an interference satisfies the requirements of paragraph 2 (see, mutatis mutandis, the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, p. 27, § 64). 54. The limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Furthermore, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless it remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see the Castells judgment cited above, p. 23, § 46). 55. In the present case the İzmir executive committee of the HEP submitted one copy of the leaflet to the İzmir prefecture on 2 July 1992 with an application for permission to distribute it (see paragraph 11 above). The security police, who were then asked to study its content, considered that the leaflet could be regarded as separatist propaganda (see paragraph 12 above). At that stage the authorities were accordingly in a position to require changes to the text. However, the day after this application was lodged at the prefecture the leaflets were seized and prosecutions brought against its authors, including Mr Incal, under Article 312 of the Criminal Code, among other provisions (see paragraph 21 above). 56. The Court notes the radical nature of the interference in question. Its preventive aspect by itself raises problems under Article 10 (see, among other authorities, the Vereniging Weekblad Bluf! v. the Netherlands judgment of 9 February 1995, Series A no. 306-A, p. 16, §§ 45 and 46, and, mutatis mutandis, the Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, pp. 18–19, § 40). In addition, the İzmir National Security Court sentenced the applicant to six months and twenty days’ imprisonment and a fine of 55,555 Turkish liras and disqualified him from driving for fifteen days (see paragraph 16 above). Furthermore, as a result of his conviction of a “public order” offence, Mr Incal was debarred from the civil service and forbidden to take part in a number of activities within political organisations, associations or trade unions (see paragraph 22 above). 57. In order to demonstrate the existence of a “pressing social need” which would justify the finding that the interference complained of was “proportionate to the legitimate aim pursued”, the representative of the Government asserted at the hearing before the Court that “it was apparent from the wording of the leaflets … that they were intended to foment an insurrection by one ethnic group against the State authorities”. It had therefore been the State’s “duty to forestall any attempt to promote terrorist activities by means of incitement to hatred”, given that “the interest in combating and crushing terrorism takes precedence in a democratic society”. Certain armed groups such as the PKK increased their effectiveness by putting out propaganda cloaked by the freedom of expression. 58. The Court is prepared to take into account the background to the cases submitted to it, particularly problems linked to the prevention of terrorism (see, among other authorities, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 9 et seq., §§ 11 et seq.; the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2281 and 2284, §§ 70 and 84; the Zana judgment cited above, p. 2549, §§ 59 and 60; and, most recently, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 59). It observes, however, that the circumstances of the present case are not comparable to those found in the Zana case (ibid.). Here the Court does not discern anything which would warrant the conclusion that Mr Incal was in any way responsible for the problems of terrorism in Turkey, and more specifically in İzmir. It should be pointed out in that connection that not even the National Security Court upheld the public prosecutor’s submission that the Prevention of Terrorism Act (Law no. 3713) should be applied to the applicant (see paragraphs 15, 16 and 24 above). 59. In conclusion, Mr Incal’s conviction was disproportionate to the aim pursued, and therefore unnecessary in a democratic society. There has accordingly been a breach of Article 10 of the Convention. 60. The applicant further complained of an infringement of his right to freedom of thought, guaranteed by Article 9 of the Convention. Like the Commission, the Court considers that this complaint is subsumed by the complaint under Article 10 and that it is not necessary to examine it separately. II. Alleged violation of Article 6 § 1 of the Convention 61. Mr Incal further argued that neither his trial in the İzmir National Security Court nor the proceedings before the Criminal Division of the Court of Cassation had satisfied the requirements of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal…” He submitted that the National Security Court was not an “independent and impartial tribunal”; as to the Court of Cassation, it had not respected the principle of adversarial procedure or equality of arms and had not held a hearing. The Government rejected this argument, whereas the Commission accepted it, except for that part which related to the lack of a public hearing. A. The proceedings in the National Security Court 1. Arguments of the participants (a) The applicant 62. Mr Incal submitted that the İzmir National Security Court could not be regarded as an “independent and impartial tribunal” within the meaning of Article 6 § 1. The military judge who sat in it was dependent on the executive and, more specifically, on the military authorities, because while performing his judicial duties he remained an officer and maintained his links with the armed forces and his hierarchical superiors. The latter retained the power to influence his career by means of the assessment reports they drew up on him. Mr Incal maintained that the National Security Courts were special courts set up to protect the State’s interests rather than to do justice as such; in that respect their function was similar to that of the executive. The presence of a military judge in the court’s composition only served to confirm the army’s authority and its intimidating influence over both the defendant and public opinion in general. The fact that a military judge was able to pass judgment on a civilian, and a politician at that, in connection with an offence that had nothing to do with military justice, evidenced the armed forces’ influence over the handling of Turkey’s political problems. (b) The Government 63. The Government submitted that the procedure for the appointment of the military judges sitting as members of the National Security Courts and the safeguards they enjoyed in the performance of their judicial duties perfectly satisfied the criteria laid down by the Court’s case-law on the subject. The arguments concerning these judges’ responsibility towards their commanding officers and the rules governing their professional assessment were overstated; their duties as officers were limited to obeying military regulations and observing military courtesies. They were safe from any pressure from their hierarchical superiors, as such an attempt was punishable under the Military Criminal Code. The assessment system applied only to military judges’ non-judicial duties. In addition, they had access to their assessment reports and could even challenge their content in the Supreme Military Administrative Court. In the present case, neither the colleagues or hierarchical or disciplinary superiors of the military judge in question nor the public authorities who had appointed him had any connection with the parties to Mr Incal’s trial or any interest whatsoever in the judgment to be delivered. (c) The Commission 64. In the Commission’s submission, the legal rules governing the composition and functioning of the National Security Courts raised a number of questions about their independence, particularly as regards the system for the appointment and assessment of the military judges who sat in them. It took the view that the participation of a military judge in criminal proceedings against a civilian showed the exceptional nature of such proceedings and could be interpreted as an intervention by the armed forces in the field of civil justice. The applicant’s concerns about the National Security Court’s lack of impartiality could therefore be regarded as objectively justified. 2. The Court’s assessment 65. The Court reiterates that in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (see, among many other authorities, the Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, p. 281, § 73). As to the condition of “impartiality” within the meaning of that provision, there are two tests to be applied: the first consists in trying to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. It was not contested before the Court that only the second of these tests was relevant in the instant case (see, mutatis mutandis, the Gautrin and Others v. France judgment of 20 May 1998, Reports 1998-III, pp. 1030–31, § 58). In the instant case, however, the Court will consider both issues – independence and impartiality – together. 66. Law no. 2845, promulgated on 16 June 1983, pursuant to Article 143 of the Constitution, governs the composition and functioning of the National Security Courts (see paragraph 28 above). Under the provisions of section 5, these courts are composed of three judges, one of whom is a regular officer and member of the Military Legal Service. As the independence and impartiality of the two civilian judges is not disputed, the Court must determine what the position was with regard to the military judge. 67. The Court notes that the status of military judges sitting as members of National Security Courts provides certain guarantees of independence and impartiality. For example, military judges undergo the same professional training as their civilian counterparts, which gives them the status of career members of the Military Legal Service. When sitting as members of National Security Courts, military judges enjoy constitutional safeguards identical to those of civilian judges; in addition, with certain exceptions, they may not be removed from office or made to retire early without their consent (see paragraphs 27 and 28 above); as regular members of a National Security Court they sit as individuals; according to the Constitution, they must be independent and no public authority may give them instructions concerning their judicial activities or influence them in the performance of their duties (see paragraphs 27 and 30 above and, mutatis mutandis, the Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117, p. 18, § 38). 68. On the other hand, other aspects of these judges’ status make it questionable. Firstly, they are servicemen who still belong to the army, which in turn takes its orders from the executive. Secondly, they remain subject to military discipline and assessment reports are compiled on them by the army for that purpose (see paragraphs 28 and 29 above). Decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army (see paragraph 29 above). Lastly, their term of office as National Security Court judges is only four years and can be renewed. 69. The Court notes that the National Security Courts were set up pursuant to the Constitution to deal with offences affecting Turkey’s territorial integrity and national unity, its democratic regime and its State security (see paragraphs 26 and 28 above). Their main distinguishing feature is that, although they are non-military courts, one of their judges is always a member of the Military Legal Service. 70. At the hearing before the Court the Government submitted that the only justification for the presence of military judges in the National Security Courts was their undoubted competence and experience in the battle against organised crime, including that committed by illegal armed groups. For years the armed forces and the military judges – in whom, moreover, the people placed great trust – had acted, partly under martial law, as the guarantors of the democratic and secular Republic of Turkey, while assuming their social, cultural and moral responsibilities. For as long as the terrorist threat persisted, military judges would have to continue to lend their full support to these special courts, whose task was extremely difficult. It is not for the Court – which is aware of the problems caused by terrorism (see, mutatis mutandis, the judgments cited in paragraph 58 above) – to pass judgment on these assertions. Its task is not to determine in abstracto whether it was necessary to set up such courts in a Contracting State or to review the relevant practice, but to ascertain whether the manner in which one of them functioned infringed the applicant’s right to a fair trial (see, among many other authorities, mutatis mutandis, the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, § 27). 71. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (see, among other authorities, the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, § 48, the Thorgeir Thorgeirson judgment cited above, p. 23, § 51, and the Pullar v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 794, § 38). In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified (see, mutatis mutandis, the Hauschildt judgment cited above, p. 21, § 48, and the Gautrin and Others judgment cited above, pp. 1030–31, § 58). 72. Mr Incal was convicted of disseminating separatist propaganda capable of inciting the people to resist the government and commit criminal offences, for participating in the decision to distribute the leaflet in issue, taken on 1 July 1992 by the executive committee of the İzmir section of the HEP (see paragraphs 15 and 16 above). As the acts which gave rise to the case were considered likely to endanger the founding principles of the Republic of Turkey, or to affect its security, they came ipso jure under the jurisdiction of the National Security Courts (see paragraph 28 above). The Court notes, however, that in considering the question of compliance with Article 10 it did not discern anything in the leaflet which might be regarded as incitement of part of the population to violence, hostility or hatred between citizens (see paragraph 50 above). Moreover, the National Security Court refused to apply the Prevention of Terrorism Act (Law no. 3713) (see paragraph 16 above). In addition, the Court attaches great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces. It follows that the applicant could legitimately fear that because one of the judges of the İzmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. The Court of Cassation was not able to dispel these concerns, as it did not have full jurisdiction (see paragraph 25 above and, among other authorities, mutatis mutandis, the Helle v. Finland judgment of 19 December 1997, Reports 1997-VIII, p. 2926, § 46). 73. In conclusion, the applicant had legitimate cause to doubt the independence and impartiality of the İzmir National Security Court. There has accordingly been a breach of Article 6 § 1. B. The proceedings in the Court of Cassation 74. Having regard to the above conclusion (see paragraph 73 above), the Court considers that it is not necessary to consider the other complaints under Article 6 relating to the proceedings in the Court of Cassation (see, mutatis mutandis, the Findlay judgment cited above, pp. 282–83, § 80). III. Alleged violation of Article 14 of the Convention 75. In his application to the Commission Mr Incal also alleged a breach of Article 14 taken in conjunction with Article 6 § 1 in that in refusing his application for his prison sentence to be commuted to a fine the İzmir National Security Court had taken account of his political opinions only. He did not maintain this complaint during the proceedings before the Court, which sees no reason to examine it of its own motion (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 28, § 62). IV. application of Article 50 of the Convention 76. Under Article 50 of the Convention, “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Elimination of the consequences of the conviction 77. At the hearing Mr Incal asked to be reinstated in the rights he had lost, pursuant to Article 312 of the Criminal Code, on account of his conviction. He also asked the Court to order the Government to take steps to ensure that this provision would no longer be applied in domestic law. 78. The Court notes that it has no jurisdiction under the Convention to order such measures (see, mutatis mutandis, the Akdivar and Others v. Turkey judgment of 1 April 1998 ( Article 50 ), Reports 1998-II, pp. 723 ‑ 24, § 47). B. Damage and costs and expenses 79. The applicant claimed 2,000,000 French francs (FRF) for pecuniary damage and FRF 5,000,000 for non-pecuniary damage. In support of his claims he asserted that at the material time he was in practice as a lawyer and was an associate director of five commercial undertakings. He asserted that he had sustained a considerable loss of income. Mr Incal further claimed reimbursement of his costs and expenses, which amounted to FRF 20,000 for preparing and communicating the documents produced in Strasbourg and FRF 80,000 for his representation before the Convention institutions, including his lawyers’ fees. 80. The Government argued, as their principal submission, that no compensation was called for in the present case. In the alternative, they maintained that the sums claimed were excessive and unjustified. They emphasised that the applicant had had the advantage of a stay of execution of four months in which to organise his affairs and minimise any losses. If the Court were to find a violation of the Convention, that finding in itself would constitute sufficient just satisfaction, as no causal connection had been established between the facts complained of and the damage alleged. The Government also considered that the claim in respect of costs and expenses had not been duly documented. 81. With regard to pecuniary damage, the Delegate of the Commission suggested that the Court should consider the question of the application of Article 50 in the light of the hypothetical character of the amount claimed. He left the question of non-pecuniary damage to the Court’s discretion. Lastly, with regard to the sum claimed for costs and expenses, he mentioned the problem raised by the lack of supporting documents. 82. On the question of pecuniary damage, the Court considers in the first place that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. It further notes that there is insufficient proof of a causal connection between the breach of Article 10 it has found and the loss of professional and commercial income alleged by the applicant. Moreover, the applicant’s claims in respect of pecuniary damage are not supported by any evidence whatsoever. The Court can therefore not allow them. With regard to non-pecuniary damage, the Court considers that the applicant suffered a certain amount of distress on account of the facts of the case. Making an assessment on an equitable basis, as required by Article 50, the Court awards him compensation in the sum of FRF 30,000 under this head. 83. With regard to costs and expenses, the Court awards Mr Incal, on an equitable basis and according to the criteria laid down by its case-law (see, among other authorities, the Demicoli v. Malta judgment of 27 August 1991, Series A no. 210, p. 20, § 49), the overall sum of FRF 15,000. D. Default interest 84. The Court deems it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment, which is 3.36% per annum. | The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the applicant could legitimately fear that because one of the judges of the National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of his case, and that he therefore had legitimate cause to doubt the independence and impartiality of the National Security Court. It noted in particular that there could have been some doubt as to the independence and impartiality of the State Security Court, as it was partly made up of army officers, whereas the applicant was a civilian. In particular, the Court attached great importance to the fact that the applicant, a civilian, had had to appear before a court composed, even if only in part, of members of the armed forces. It also noted that, in this respect, even appearances may be of a certain importance. What was at stake was the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified. |
608 | Wearing of religious symbols or clothing in a courtroom | II. RELEVANT DOMESTIC LAW AND PRACTICE A. As concerns the wearing of religious symbols 12. According to the most recent census, taken in 2013, Muslims make up almost 51% of the population of Bosnia and Herzegovina and Christians almost 46% (approximately two thirds of Christians are Orthodox and one third is Catholic). 13. The Constitution of Bosnia and Herzegovina guarantees “the highest level of internationally recognised human rights and fundamental freedoms”, including the freedom of religion (see Article II of the Constitution). Whilst the principle of secularism is not expressly stated in the Constitution, it transpires from the 2004 Freedom of Religion Act [3] and from the case-law of the Constitutional Court of Bosnia and Herzegovina (see, in particular, decisions nos. AP 286/06, 29 September 2007, § 28, and AP 377/16, 20 April 2016, § 35) that Bosnia and Herzegovina is a secular State. The relevant provisions of the 2004 Freedom of Religion Act read as follows: Section 1(1) “In accordance with the heritage and traditional values of tolerance and coexistence of multi-confessional Bosnia and Herzegovina, and with the aim of promoting mutual understanding and respect for the right to freedom of conscience and religion, this Act establishes a legal framework within which all churches and religious communities in Bosnia and Herzegovina shall act and be equal in rights and obligations, without any discrimination.” Section 11(1) “Churches and religious communities shall be self-administering in accordance with their own laws and doctrines. This shall have no civil-law effect, shall not be enforced by the public authorities and shall not be applicable to non-members.” Section 14 “Churches and religious communities are separate from the State, which means that: (1) The State may not accord the status of State religion or State church or religious community to any church or religious community; (2) The State shall not have the right to interfere in the internal organisation and the affairs of churches and religious communities; (3) Subject to subsection (4) below, no church, religious community or religious official may obtain any special privileges from the State; churches and religious communities may not participate formally in any political institutions; (4) The State may confer, on an equal basis, material support to churches and religious communities for heritage conservation as well as health-care, educational, charitable and social services provided by churches and religious communities, on condition that those services be provided without discrimination on any grounds, and notably on the grounds of religion or belief; (5) Churches and religious communities may take part in upbringing, education and humanitarian, social and health-care assistance, in accordance with family law; (6) The public authorities shall not interfere in the election, appointment or removal of religious officials and the internal structure of churches and religious communities; (7) Freedom to manifest religion or belief may be subject only to such limitations as are prescribed by law and necessary in the interests of public safety, for the protection of health or morals, or for the protection of the rights and freedoms of others in accordance with international standards. Churches and religious communities shall have the right to appeal against any such decision. The appellate body shall seek an opinion of the Ministry of Human Rights and Refugees of BiH in this connection.” 14. In 2015 the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (“the HJPC”) made an analysis of the legal framework relating to the wearing of religious symbols in judicial institutions [4]. As stated in that analysis, judges, prosecutors and court officers in Bosnia and Herzegovina are forbidden to wear such symbols in the course of their duties. The HJPC relied on a number of domestic provisions, notably section 13 of the Courts Act 2005 of the Federation of Bosnia and Herzegovina [5] and section 14 of the Courts Act 2012 of the Republika Srpska [6]. While that prohibition does not apply to other persons, such as parties and witnesses, they may be ordered to remove a religious symbol in a courtroom if this is considered justified by the judge in a given case, taking into consideration the right to freedom of religion and equal access to justice, the organisation of the proceedings and the need to maintain the authority of the judiciary. On 21 October 2015 the HJPC sent a circular to all courts and prosecutors in the country reminding them of those rules. The circular, notably as regards the wearing of religious symbols by judicial officials, was condemned by the Islamic Community of Bosnia and Herzegovina, the House of Representatives of the Federation of Bosnia and Herzegovina, two cantonal assemblies, the Agency for Gender Equality, the Women’s Network (an informal group working on women’s rights) and others. The HJPC at that point requested all courts and prosecutors in the country to inform it whether they had come across any cases of judges, prosecutors or court officers wearing religious symbols in the course of their duties. It would appear from the replies that one judge and approximately ten court officers wore headscarves. On 10 February 2016 the HJPC reasserted its position that judges, prosecutors and court officers were forbidden to wear religious symbols at work. It reminded all court presidents and chief prosecutors of their duty to enforce that rule. B. As concerns the examination of witnesses and contempt of court 15. The relevant part of Article 81 of the Code of Criminal Procedure of Bosnia and Herzegovina [7] reads: “(4) Witnesses shall be notified in the summons ... of the consequences of failing to appear. (5) Should a witness fail to appear and to justify his or her absence, the court may impose upon him or her a fine of up to BAM 5,000 or issue a warrant to arrest the witness and bring him or her before the court.” 16. The relevant part of Article 86 § 6 of the Code reads: “Given the age and the physical and mental condition of a witness, or for other justified reasons, he or she may be examined using technical means for transferring image and sound in such a manner as to permit the parties and the defence attorney to ask questions although not in the same room as the witness. ...” 17. The relevant part of Article 242 § 3 of the Code provides : “Should ... a witness ... cause a disturbance in the courtroom or fail to comply with an order of ... the presiding judge, ... the presiding judge shall warn him or her. If the warning is unsuccessful ... the presiding judge may order that the person be expelled from the courtroom and be fined in an amount of up to BAM 10,000 ...” 18. Article 256 of the Code provides: “(1) When the judges enter or exit the courtroom, all those present shall stand up upon being called to do so by the court officer. (2) The parties and other participants in the proceedings shall stand up when addressing the court unless there are justified reasons for not doing so.” 19. Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina [8] provides that on the premises of judicial institutions at State level, including the State Court, everyone must respect the “dress code applicable to judicial institutions”. The Rules were issued by the President of the State Court, the Chief Prosecutor and the President of the HJPC in June 2009. They were not published in the Official Gazette, but they are displayed in the building of the State Court, where they are easily visible to all visitors. C. As concerns the conversion of fines into imprisonment 20. Article 47 of the Criminal Code of Bosnia and Herzegovina [9] reads as follows: “(1) Fines shall not be collected by force. (2) If a fine is not paid within the period determined in the judgment, the court shall, without delay, convert the fine into imprisonment. (3) The fine shall be converted into imprisonment in such a way that ... each BAM 100 is converted into one day of imprisonment, provided that the term of imprisonment does not exceed the punishment prescribed for that particular offence. (4) If the convicted person has only paid a portion of the fine, the remaining amount shall be proportionally converted into imprisonment and if he or she then pays the remaining amount, the execution of the prison sentence shall cease.” III. COMPARATIVE LAW 21. The Court conducted a comparative study of the legislation of thirty-eight Contracting States (Albania, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Liechtenstein, Lithuania, Republic of Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom). The wearing of religious symbols by private citizens in courtrooms is not regulated, as such, by the laws of any of the States covered. Consequently, none of them prohibits wearing such symbols on the sole ground that they are religious. Nevertheless, it should be noted that a minority of Contracting States apply a more or less loosely defined dress code to private citizens on court premises, and in four States this means keeping one’s head uncovered while in the courtroom (Belgium, Italy, Portugal and Slovakia). It would appear that this rule has never been applied to religious symbols in Italy, Portugal and Slovakia. As concerns Belgium, a recent study by the Human Rights Centre of Ghent University shows that only around 30% of Belgian judges have ever made use of this provision. Of this minority of judges, around 80% explained that they had only used this provision with regard to non-religious headgear, such as baseball caps [10]. 22. Special rules may apply to face-covering clothing (such as the burqa and niqab). For example, in the case of R v. D (R) ([2013] Eq LR 1034), a British judge ruled as follows: “(1) The defendant must comply with all directions given by the Court to enable her to be properly identified at any stage of the proceedings. (2) The defendant is free to wear the niqab during trial, except while giving evidence. (3) The defendant may not give evidence wearing the niqab. (4) The defendant may give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury, and counsel; or by mean [ s] of a live TV link. (5) Photographs and filming are never permitted in court. But in this case, I also order that no drawing, sketch or other image of any kind of the defendant while her face is uncovered be made in court, or disseminated, or published outside court.” IV. OTHER RELEVANT MATERIALS 23. The Islamic Community in Bosnia and Herzegovina was established in 1882 during the Austrian-Hungarian rule over Bosnia and Herzegovina. After the creation of the Kingdom of Serbs, Croats and Slovenes, the seat of the Islamic Community was moved from Sarajevo to Belgrade. The Islamic Community in Bosnia and Herzegovina broke away from Belgrade in 1993, shortly after Bosnia and Herzegovina had become independent. The Islamic Community in Bosnia and Herzegovina and its head, the Grand Mufti of Bosnia and Herzegovina, are the highest religious authorities for about four million Muslims in the world. The Islamic Community in Bosnia and Herzegovina has jurisdiction throughout Bosnia and Herzegovina, as well as in Croatia, Slovenia and Bosniac religious communities and mosques around the world. The Islamic Community in Montenegro is not formally under the jurisdiction of the Islamic Community in Bosnia and Herzegovina, but it recognises the Grand Mufti of Bosnia and Herzegovina as the highest moral authority of Muslims in the region. In Serbia, however, there is a dispute as to whether the Islamic Community in Bosnia and Herzegovina or the Islamic Community in Serbia has jurisdiction over the country. 24. The position of the Islamic Community in Bosnia and Herzegovina on wearing the hijab/headscarf and the skullcap is outlined in a letter sent to Mr Osman Mulahalilović, the applicant’s lawyer, on 19 September 2016 [11] : “The Islamic Community, through its highest representative and legislative body, the Mufti Council, took an official position regarding the wearing of a hijab (headscarf) in Islamic teaching. The position was expressed in the fatwa that established the following: ‘The hijab, the headscarf worn by Muslim women, is a religious duty and clothing practice of Muslim women stipulated by the basic sources of Islam, the Koran and Sunnah as well as the consensus of all Muslims. ...’ As concerns the wearing of the skullcap, this represents a centuries-old tradition of Muslims in Bosnia and Herzegovina and elsewhere. The wearing of the skullcap does not represent a strong religious duty, but it has such strong traditional roots that it is considered as a religious duty by many. Until recent discussions about the wearing of the skullcap caused by decisions of judicial institutions in Bosnia and Herzegovina, we were not aware that the wearing of the skullcap had been prohibited in earlier regimes. It has always been respected as part of the traditional identity of each person since wearing the skullcap in public was a sign of civility.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 25. The applicant complained that his punishment for wearing a skullcap in a courtroom was contrary to Article 9, which reads as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. Preliminary remark 26. It should be noted at the outset that the present case is not about the wearing of religious symbols and clothing at the workplace (in this regard, see Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001 ‑ V; Kurtulmuş v. Turkey (dec.), no. 65500/01, ECHR 2006 ‑ II; Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, ECHR 2013; and Ebrahimian v. France, no. 64846/11, ECHR 2015). Indeed, it concerns a witness in a criminal trial, which is a completely different issue. The public debate now taking place in Bosnia and Herzegovina about the wearing of religious symbols and clothing by judicial officials (see paragraph 14 above), as well as the applicant’s submissions in that regard, are therefore irrelevant to the present case. B. Admissibility 27. The Government did not raise any admissibility objections. As this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds, it must be declared admissible. C. Merits 1. The parties’ submissions 28. The applicant argued that it was his religious duty to wear a skullcap, since the Prophet Muhammad had also worn one. In his case, the ban on wearing the skullcap had therefore amounted to a “limitation” on the manifestation of his religion. In his view, that limitation had not been lawful, as no statutory provision expressly prohibited the wearing of the skullcap in the courtroom. The House Rules on which the domestic decisions had relied (see paragraph 19 above) could not introduce into the legal system bans that had not been prescribed in statute. Moreover, the sanction imposed on him was disproportionate. According to the applicant, the State Court wished to send a message to religious people that they were not welcome at that court and that they would be imprisoned if and when they entered its premises. 29. The Government were in agreement with the applicant that the ban on wearing the skullcap in the courtroom had amounted to a “limitation” on the manifestation of his religion. They relied in this connection on the case-law of the Constitutional Court of Bosnia and Herzegovina and General Comment No. 22 on the right to freedom of thought, conscience and religion adopted by the United Nations Human Rights Committee on 27 September 1993, according to which “The observance and practice of religion or belief may include ... the wearing of distinctive clothing or headcoverings” (document no. CCPR/C/21/Rev.1/Add.4, § 4). That said, the Government argued that the limitation was lawful. The House Rules on which the domestic decisions had relied should be read in conjunction with Article 242 § 3 of the Code of Criminal Procedure, affording trial judges wide discretion with regard to questions of court decorum (see paragraph 17 above). As regards the aim of the limitation, the Government maintained that the trial judge had simply enforced a generally accepted rule of civility and decent behaviour that skullcaps were not permitted in the courtroom in Bosnia and Herzegovina. Moreover, the trial judge had acted to protect the principle of secularism, which was of vital importance in multicultural societies, such as that of Bosnia and Herzegovina. Considering also that the impugned measure had been taken in the context of a sensitive and complex case regarding a terrorist attack against the Embassy of the United States, the Government argued that the limitation in question had been proportionate. 2. The Court’s assessment (a) Whether there has been a “limitation” within the meaning of Article 9 § 2 30. The parties agreed that the punishment imposed on the applicant for wearing a skullcap in a courtroom constituted a limitation on the manifestation of his religion. This is in line with the official position of the Islamic Community in Bosnia and Herzegovina, according to which the wearing of the skullcap does not represent a strong religious duty, but it has such strong traditional roots that it is considered by many people to constitute a religious duty (see the last paragraph of the letter of 19 September 2016 cited in paragraph 24 above). This is also in line with the ruling of the Constitutional Court (see paragraph 10 above). 31. Such a limitation will not be compatible with Article 9 § 2 unless it is “prescribed by law”, pursues one or more of the legitimate aims set out in that paragraph and is “necessary in a democratic society” to achieve the aim or aims concerned. (b) Whether the measure was “prescribed by law” 32. The Court reiterates that the expression “prescribed by law” in the second paragraph of Article 9 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 99, ECHR 2016). 33. In the present case, the parties’ opinions differed as to whether the impugned measure was “prescribed by law”. As pointed out by the applicant, no statutory provision expressly prohibited the wearing of the skullcap in the courtroom (see also the position of the HJPC in this regard in paragraph 14 above). However, the applicant was not punished pursuant to any such general ban, but on the basis of an inherent power of the trial judge to regulate the conduct of proceedings in the State Court so as to ensure that no abuse of the court occurred and that the proceedings were fair to all parties, a provision that is inevitably couched in terms which are vague (see Article 242 § 3 of the Code of Criminal Procedure in paragraph 17 above). The Constitutional Court examined this issue in depth and concluded that the interference was lawful, taking into consideration especially the fact that the president of the trial chamber had informed the applicant of the applicable rule and of the consequences of disobeying it (see paragraph 10 above). The Court has no strong reasons to depart from the finding of the Constitutional Court. It therefore considers that there was a basis in law for restricting the wearing of the skullcap in the courtroom. (c) Whether there was a legitimate aim 34. The Court has already held that the enumeration of the exceptions to the individual’s freedom to manifest his or her religion or beliefs, as listed in Article 9 § 2, is exhaustive and that their definition is restrictive (see S.A.S. v. France [GC], no. 43835/11, § 113, ECHR 2014, and the authorities cited therein). For it to be compatible with the Convention, a limitation on this freedom must therefore pursue an aim that can be linked to one of those listed in this provision. 35. The applicant took the view that the interference with the exercise of his freedom to manifest his religion did not correspond to any of the aims listed in Article 9 § 2. The Government maintained, for their part, that the impugned measure pursued two legitimate aims: to protect the rights and freedoms of others; and to maintain the authority and impartiality of the judiciary. The Court notes that the second paragraph of Article 9 does not refer expressly to the second of those aims. As regards the first of the aims invoked – to ensure the protection of the rights and freedoms of others – the Government referred to the principle of secularism and the need to promote tolerance in a post-conflict society. The Court has already held that secularism is a belief protected by Article 9 of the Convention (see Lautsi and Others v. Italy [GC], no. 30814/06, § 58, ECHR 2011) and that an aim to uphold secular and democratic values can be linked to the legitimate aim of the “protection of the rights and freedoms of others” within the meaning of Article 9 § 2 (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 99, ECHR 2005 ‑ XI, and Ahmet Arslan and Others v. Turkey, no. 41135/98, § 43, 23 February 2010). There is no reason to decide otherwise in the present case. (d) Whether the measure was “necessary in a democratic society” (i) General principles 36. The general principles concerning Article 9 were recently restated in S.A.S. v. France ( cited above, §§ 124-31 ) : “124. As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A; Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I; and Leyla Şahin, cited above, § 104). 125. While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists the various forms which the manifestation of one’s religion or beliefs may take, namely worship, teaching, practice and observance (see, mutatis mutandis, Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 73, ECHR 2000-VII, and Leyla Şahin, cited above, § 105). Article 9 does not, however, protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one’s religion or beliefs (see, for example, Arrowsmith v. the United Kingdom, no. 7050/75, Commission’s report of 12 October 1978, DR 19, p. 5; Kalaç v. Turkey, 1 July 1997, § 27, Reports of Judgments and Decisions 1997 ‑ IV; and Leyla Şahin, cited above, §§ 105 and 121). 126. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place limitations on freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, § 33). This follows both from paragraph 2 of Article 9 and from the State’s positive obligations under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined therein (see Leyla Şahin, cited above, § 106). 127. The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. As indicated previously, it also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see Manoussakis and Others v. Greece, 26 September 1996, § 47, Reports 1996-IV; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000 ‑ XI; and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 91, ECHR 2003 ‑ II), and that this duty requires the State to ensure mutual tolerance between opposing groups (see, among other authorities, Leyla Şahin, cited above, § 107). Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999 ‑ IX; see also Leyla Şahin, cited above, § 107). 128. Pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair treatment of people from minorities and avoids any abuse of a dominant position (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999-III). Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society (see, mutatis mutandis, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 45, Reports 1998-I, and Refah Partisi (the Welfare Party) and Others, cited above, § 99). Where these ‘rights and freedoms of others’ are themselves among those guaranteed by the Convention or the Protocols thereto, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a ‘democratic society’ (see Chassagnou and Others, cited above, § 113; see also Leyla Şahin, cited above, § 108). 129. It is also important to emphasise the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see, for example, Maurice v. France [GC], no. 11810/03, § 117, ECHR 2005 ‑ IX). This is the case, in particular, where questions concerning the relationship between State and religions are at stake (see, mutatis mutandis, Cha’are Shalom Ve Tsedek, cited above, § 84, and Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; see also Leyla Şahin, cited above, § 109). As regards Article 9 of the Convention, the State should thus, in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one’s religion or beliefs is ‘necessary’. That being said, in delimiting the extent of the margin of appreciation in a given case, the Court must also have regard to what is at stake therein (see, among other authorities, Manoussakis and Others, cited above, § 44, and Leyla Şahin, cited above, § 110). It may also, if appropriate, have regard to any consensus and common values emerging from the practices of the States Parties to the Convention (see, for example, Bayatyan v. Armenia [GC], no. 23459/03, § 122, ECHR 2011). 130. In the judgment in Leyla Şahin (cited above), the Court pointed out that this would notably be the case when it came to regulating the wearing of religious symbols in educational institutions, especially in view of the diversity of the approaches taken by national authorities on the issue. Referring to the judgment in Otto-Preminger-Institut v. Austria (20 September 1994, § 50, Series A no. 295-A) and the decision in Dahlab v. Switzerland ((dec.), no. 42393/98, ECHR 2001-V), it added that it was thus not possible to discern throughout Europe a uniform conception of the significance of religion in society and that the meaning or impact of the public expression of a religious belief would differ according to time and context. It observed that the rules in this sphere would consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. It concluded from this that the choice of the extent and form of such rules must inevitably be left up to a point to the State concerned, as it would depend on the specific domestic context (see Leyla Şahin, cited above, § 109). 131. This margin of appreciation, however, goes hand in hand with a European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (see among other authorities, Manoussakis and Others, cited above, § 44, and Leyla Şahin, cited above, § 110).” (ii) Application of those principles to the present case 37. The Court notes that in the present case the applicant had no choice but to appear before the domestic court: in accordance with the Code of Criminal Procedure of Bosnia and Herzegovina, a witness who fails to appear risks being fined or arrested (see paragraph 15 above). It further observes that the applicant stood up when addressing the court, as required under domestic law (see paragraph 18 above). The presiding judge informed the applicant that he was also required to remove his skullcap, pursuant to the House Rules (see paragraph 19 above). He explained that the wearing of the skullcap was contrary to the dress code applicable to judicial institutions and that no religious symbols or clothing were permitted in court. The applicant was then accorded some additional time for reflection, but he eventually refused to remove his skullcap, claiming that it was his religious duty to wear a skullcap at all times. The presiding judge fined him for contempt of court. The applicant failed to pay, so the fine was converted into thirty days of imprisonment (see paragraph 9 above). 38. It is important to emphasise the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight. This is the case, in particular, where questions concerning the relationship between State and religions are at stake, as rules in this sphere vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. As regards Article 9 of the Convention, the State should thus, in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one’s religion or beliefs is “necessary”. This margin of appreciation, however, goes hand in hand with European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate. In this respect, the Court may, if appropriate, have regard to any consensus and common values emerging from the practices of the States Parties to the Convention (see, among other authorities, S.A.S. v. France, cited above, § § 129-31). 39. The Court is aware that the presiding judge had a difficult task of maintaining order and ensuring the integrity of the trial in a case in which a number of participants belonged to a religious group opposing the concept of a secular State and recognising only God’s law and court (see paragraph 6 above). The Court has also taken note of the overall context at the time of the trial. Nonetheless, the Court considers that the measure taken at national level was not justified, for the following reasons. 40. As mentioned above (see paragraph 26 above), the present case must be distinguished from cases concerning the wearing of religious symbols and clothing in the workplace, notably by public officials who may be under a duty of discretion, neutrality and impartiality, including a duty not to wear such symbols and clothing while exercising official authority (see Pitkevich v. Russia (dec.), no. 47936/99, 8 February 2001, concerning the dismissal of a judge because she had, among other things, proselytised and prayed during court hearings; Dahlab, cited above, concerning the prohibition on a primary-school teacher wearing a headscarf while teaching; Kurtulmuş v. Turkey (dec.), no. 65500/01, ECHR 2006 ‑ II, concerning the prohibition on a university professor wearing a headscarf while teaching; Eweida and Others, cited above, § 105, concerning the dismissal of a registrar of births, deaths and marriages as a result of her refusal to conduct same-sex partnerships; and Ebrahimian v. France, no. 64846/11, ECHR 2015, concerning the prohibition on a social worker in the psychiatric department of a public hospital wearing a headscarf at work). In democratic societies, private citizens, such as the applicant, are normally not under such a duty. 41. It is true that Article 9 of the Convention does not protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one’s religion or beliefs (see S.A.S. v. France, cited above, § 125, and the authorities cited therein; see also, mutatis mutandis, Enver Aydemir v. Turkey, no. 26012/11, §§ 68-84, 7 June 2016, in which the Court held that the applicant’s refusal, because of his idealistic and political views linked to the Koran and Sharia, to perform military service for the secular Republic of Turkey was not such as to entail the applicability of Article 9). Indeed, there may be cases when it is justified to order a witness to remove a religious symbol (see paragraph 22 above). However, the Court would emphasise that the authorities must not neglect the specific features of different religions. Freedom to manifest one’s religion is a fundamental right: not only because a healthy democratic society needs to tolerate and sustain pluralism and diversity, but also because of the importance to an individual who has made religion a central tenet of his or her life of being able to communicate that belief to others (see Eweida and Others, cited above, § 94). The Court sees no reason to doubt that the applicant’s act was inspired by his sincere religious belief that he must wear a skullcap at all times, without any hidden agenda to make a mockery of the trial, incite others to reject secular and democratic values or cause a disturbance (see, in this regard, Eweida and Others, cited above, § 81). Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail. The role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see S.A.S. v. France, cited above, § 127-28). 42. Unlike some other members of his religious group (see paragraph 6 above), the applicant appeared before the court as summoned and stood up when requested, thereby clearly submitting to the laws and courts of the country. There is no indication that the applicant was not willing to testify or that he had a disrespectful attitude. In these circumstances, his punishment for contempt of court on the sole ground of his refusal to remove his skullcap was not necessary in a democratic society. 43. The Court concludes that in the present case the domestic authorities exceeded the wide margin of appreciation afforded to them (see paragraph 38 above). There has therefore been a violation of Article 9 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 44. The applicant submitted that he had been discriminated against in the enjoyment of his freedom to manifest his religion. He relied on Article 14 of the Convention taken together with Article 9 of the Convention. 45. The Government contested that argument. 46. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 47. Since the applicant’s complaint relating to Article 14 amounts to a repetition of his complaint under Article 9, and having regard to the finding relating to Article 9 (in paragraph 43 above), it is not necessary to examine whether, in this case, there has also been a violation of Article 14 (see, for example, Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 134, ECHR 2001-XII). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 50. The Government considered the claim to be excessive. 51. The Court accepts that the applicant suffered distress as a result of the violation found, justifying an award in respect of non-pecuniary damage. Making its assessment on an equitable basis, as required by the Convention, the Court awards the applicant EUR 4,500 under this head, plus any tax that may be chargeable. B. Costs and expenses 52. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court. 53. The Government considered the claim to be unsubstantiated. 54. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. That is to say, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the breaches found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met. Since no such documents have been submitted in the present case, the Court rejects this claim (see, for example, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 158, ECHR 2014). C. Default interest 55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 9 (freedom of religion) of the Convention. It found that there had been nothing to indicate that the applicant had been disrespectful during the trial. Punishing him with contempt of court on the sole ground that he had refused to remove his skullcap, a religious symbol, had not therefore been necessary in a democratic society and had breached his fundamental right to manifest his religion. The Court pointed out in particular that the applicant’s case had to be distinguished from cases concerning the wearing of religious symbols and clothing at the workplace, notably by public officials. Public officials, unlike private citizens such as the applicant, could be put under a duty of discretion, neutrality and impartiality, including a duty not to wear religious symbols and clothing while exercising official authority. |
769 | Confidentiality of personal information concerning health | THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 18. The applicant complained that medical documents concerning him (operation report of 2 April 1994) had been produced and used before the court, without his consent and without a medical expert having been appointed for such purpose. He alleged that this had entailed a breach of professional confidentiality and serious and unjustified interference with his right to respect for his private life. He relied on Article 8 of the Convention, of which the relevant parts read as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.” 19. The Government disputed this argument. A. Admissibility 20. The Government raised two objections to the admissibility of the application. Firstly, they considered that the applicant had not submitted his complaints, either expressly or in substance, before the domestic courts. They did not deny that the complaint related to the protection of private and family life, within the meaning of Article 8 of the Convention, but observed that the applicant had simply relied in his grounds of appeal, in an elusive and laconic manner, on the fraudulent production of a medical document and a breach of medical confidentiality in order to justify the exclusion of the document in question. In those circumstances, having regard to the elusive, summary and indirect nature of the applicant ’ s arguments before the Court of Appeal and the Court of Cassation, the Government submitted, as their principal argument, that the applicant had failed to exhaust domestic remedies. In the alternative, the Government considered that the applicant had lost his victim status in the course of the proceedings. They observed that the applicant, in his presentation of the facts to the Court, had claimed that the production of the medical documents in issue had been decisive as regards his right of contact with his children and his line of argument was thus no longer going to the reclassification of the grounds of divorce as mutual fault. In this connection the Government pointed out that the Court of Appeal, in its judgment of 21 February 2000, before ruling on the request for an extension of the applicant ’ s right of contact, had ordered a medical and psychological report on the couple and their two children, and that, in the meantime, the applicant had still benefited from the ancillary arrangements decided by the courts below. Consequently, the applicant could not claim to have been deprived of the right to see his children. Lastly, and above all, following the filing of the expert ’ s report, the Court of Appeal had granted the applicant ’ s request in its judgment of 7 June 2001. In those circumstances, the consequences of the production of the operation report had thus, in any event, been negated. Accordingly, the applicant could no longer claim victim status at this stage. 21. The applicant argued that it could be seen from the facts of the case, which the Government had not disputed, that in his appeal he had requested a ruling disallowing the production in the proceedings of a medical document that in his view constituted interference with his private life. His application for legal aid for the purposes of lodging an appeal on points of law having been dismissed, he considered that he could not be criticised for failure to exhaust all available domestic remedies. 22. The Court reiterates that the purpose of Article 35 § 1 of the Convention is to afford Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Nevertheless, that rule must be applied “with some degree of flexibility and without excessive formalism”; it is sufficient that the complaints intended to be made subsequently in Strasbourg should have been raised, “at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law”, before the national authorities (see Castells v. Spain, 23 April 1992, §§ 27 et seq., Series A no. 236; Akdivar and Others v. Turkey, 16 September 1996, § § 65 ‑ 69, Reports of Judgments and Decisions 1996 ‑ IV; and Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999 ‑ I ). The Court must therefore ascertain whether, having regard to all the circumstances of the case, the applicant may be regarded as having done everything that could reasonably be expected of him to exhaust domestic remedies. 23. The Court first notes that his request for legal aid, filed with the Court of Cassation ’ s Legal Aid Board, was rejected first by the Board and then by the President of that court on the ground that “it [did] not appear from an examination of the material in the case file that a ground of appeal on points of law [could] be argued with any real prospect of success ”. Consequently, the applicant did not lodge an appeal with the Court of Cassation, which is nevertheless one of the remedies that should in principle be exhausted in order to comply with Article 35 of the Convention (see Civet v. France [GC], no. 29340/95, § 41, ECHR 1999 ‑ VI ). However, taking into account the applicant ’ s lack of resources and the fact that legal representation was mandatory (in the context of divorce proceedings), the Court considers that the applicant cannot be accused of having failed to exhaust domestic remedies by discontinuing the appeal procedure after the decision dismissing his request (see, mutatis mutandis, Gnahoré v. France, no. 40031/98, § § 46-48, ECHR 2000 ‑ IX ). The Court further observes that, in his grounds of appeal, the applicant requested that the correspondence of 20 April 1994 between Doctor C. and his general practitioner, containing the operation report of 2 April 1994, should be declared inadmissible as evidence on the ground that it had been obtained fraudulently by his wife. He further indicated that he had never given her a copy of that report, nor had he released the doctor who signed it from his duty of medical confidentiality in that connection. Whilst it is true that the complaint thus submitted before the Court of Appeal was premised, in its first limb, on an allegation of fraud on the part of his wife, the second limb of the complaint nevertheless raised issues concerning release from a duty of medical confidentiality (which the applicant denied having granted for that purpose) and therefore relating to the admission in evidence of a document protected by such confidentiality. It was, moreover, in this vein that the applicant wrote to the President of the Court of Cassation in a letter of 14 June 2000 complaining that “judges [could] not require hospital records to be produced without risking the disclosure of facts protected by professional confidentiality ”. Respect for the confidentiality of medical data is of fundamental importance to the protection of a patient ’ s privacy (see, in this connection, Z v. Finland, 25 February 1997, § 95, Reports 1997 ‑ I ). In those circumstances, it appears that the complaint raised by the applicant before the Court under Article 8 of the Convention was inherent in his pleadings before the Court of Appeal. Accordingly, the Court considers that the applicant submitted before that court, “at least in substance”, his complaint under Article 8 of the Convention. This preliminary objection should therefore be dismissed. 24. As to the plea of inadmissibility based on the applicant ’ s alleged loss of victim status, the Court reiterates that the word “ victim ”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation of the Convention or its Protocols. The question whether or not the applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention ( see Burdov v. Russia, no. 59498/00, § 30, ECHR 2002 ‑ III ) and a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention complained of by the applicant (see, for example, Eckle v. Germany, 15 July 1982, §§ 66 et seq., Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports 1996 ‑ III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI; and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001 ‑ X ). 25. In the present case, the Court observes that the gravamen of the applicant ’ s grievances lies not in the decision as to visiting and staying contact in respect of his children, as the Government have contended, but in the production and use by the judge of medical data concerning him, in breach of his right to respect for his private life. This is clear from the presentation of the applicant ’ s complaints as set out in his application. That finding is sufficient for the Court to dismiss the Government ’ s preliminary objection. 26. The Court concludes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It moreover considers that no other ground for declaring it inadmissible has been established and therefore declares it admissible. B. Merits 1. Whether there was interference with the applicant ’ s right to respect for his private life 27. The Government have sought to show, first of all, that the production and use of the impugned document did not entail any interference with the applicant ’ s private and family life. 28. They pointed out that in the area of family law, and divorce proceedings in particular, the judge has to deal with evidence relating to the private and family life of the parties. Refusal by a judge to give consideration to such evidence, on the pretext that it might interfere with the private and family life of the parties, would be tantamount to limiting their right to a hearing, because certain material evidence, or evidence capable of influencing the outcome of the dispute, as regards, for example, the determination of arrangements for the exercise of parental responsibility, would be declared inadmissible. This would have the effect of endangering family life and the stability of children. In this connection the law provided that “[f] acts relied on as grounds for divorce or as a defence to a divorce petition [might] be established by any type of evidence” (Article 259 of the Civil Code), as long as such evidence had been obtained honestly. The Government thus emphasised the fact that to refuse evidence relating to private life would, in this sense, be contrary to the applicable legislation. They cited in this connection a judgment delivered on 29 January 1997 by the Court of Cassation, which held that a court of appeal was wrong to declare inadmissible letters from a wife to third parties and her diary, on the ground that the production of such evidence would interfere with her private life, without first considering whether the husband had obtained those documents by duress or fraud. 29. The Government further observed that there were specific guarantees under French law concerning the use of data relating to the private life of parties in proceedings of this kind. They observed that medical data produced in connection with divorce proceedings were not made known to the public or to third parties since, firstly, “[t]he proceedings on the cause of action, the consequences of the divorce and on the interim arrangements [ were] not ... public”, this being an exception to the principle of public proceedings (Article 248 of the Civil Code), and, secondly, a divorce could be validly established vis-à-vis third parties simply by producing an extract from the decree containing only its operative provisions (in accordance with former Article 1148 of the Code of Civil Procedure, now provided for in Article 1082-1 of the new Code of Civil Procedure). The judge always had the possibility, in the event of duress or fraud, of declaring inadmissible any documents of a personal nature. 30. Lastly, the Government submitted that the significance of the production of the disputed document had to be kept in perspective, since it had been only one of many items on which the Court of Appeal had based its decision and had not been decisive, as the Court of Appeal had pointed out that there was still some uncertainty as to the evolution of the applicant ’ s condition: he claimed he had given up alcohol but had not shown that he was undergoing specialised treatment. Accordingly, the Government considered that the production and use of the impugned document did not constitute interference with the applicant ’ s private life, in so far as it had not been shown that his ex-wife had obtained it by duress or fraud, nor that there had been a breach of medical confidentiality. 31. The applicant considered that the Court of Appeal had failed in its duty to ensure that personal data as fundamental as that resulting from medical observations could not be diverted from its initial purpose and cause prejudice to the person complaining of a breach of his or her privacy, in so far as that court had, in justifying its decision, expressly referred to the medical documents in question. He regarded this as interference with his right to respect for his private life. 32. The Court observes, first of all, that it has not been disputed by either of the parties that the information contained in the medical document in question relates to the applicant ’ s private life, since that information, being of a personal and sensitive nature, directly concerns his health. The Court notes in this connection that the information in question, which is of a medical nature, constitutes personal data as defined in the Council of Europe ’ s 1981 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (no. 108). 33. The Court further notes that the Court of Appeal partly based its decision on the detailed observations to be found in the operation report of 2 April 1994, reproducing the passages that it considered relevant. By doing so, it disclosed and made public information concerning the applicant ’ s health and therefore his private life. In this connection, the Court notes that the domestic law of the respondent State, as the Government rightly pointed out, affords specific guarantees in respect of the use of data relating to the private life of parties in divorce proceedings: such proceedings are not public, being an exception to the principle of publicity, and the copy of the divorce decision which is valid vis-à-vis third parties contains only the operative provisions (see paragraph 2 9 above). However, under Articles 1440 and 1441 of the new Code of Civil Procedure, concerning the issuance of copies of official documents and registers, any person may, without having to prove a particular interest, request a copy of a judicial decision (judgments and other decisions of upper or lower courts ) in civil, employment, welfare or commercial matters, from the registry of the relevant court, which will be required to provide that copy or extract. 34. There is therefore no doubt, in the Court ’ s view, that the admissibility and use by the judge of the above-mentioned medical document in evidence constituted interference with the applicant ’ s right to respect for his private life as secured by Article 8 § 1 of the Convention. It remains to be ascertained whether the interference was justified in the light of paragraph 2 of that Article. 2. Whether the interference was justified (a) “In accordance with the law” 35. Even supposing that there had been interference, the Government, with regard first of all to the condition of foreseeability, observed that under Articles 259 and 259-3 of the Civil Code evidence was unrestricted, meaning that any document, even if it came from medical records, could be produced and used except in the event of duress and fraud. Moreover, they noted that the impugned document and the factual argument based thereon had been lawfully submitted in the proceedings and that the applicant had been given the opportunity of presenting his observations as to their significance in the dispute. 36. The applicant acknowledged that Article 259-1 of the Civil Code, as worded at the material time, might imply that a document concerning a party ’ s private life was admissible. Apart from the fact that the information contained in the letter of 20 April 1994 was of a medical nature, the applicant noted that there had also been a misappropriation of his private correspondence with his doctor, which clearly fell outside the scope of the “paperwork” that he said he had entrusted to his ex- wife. 37. The Court takes note of the parties ’ agreement as to the fact that the interference in question was “in accordance with the law”. The legal basis for the interference lies in the gathering of evidence in divorce proceedings, which is governed by special legal rules under Articles 259 et seq. of the Civil Code (see paragraphs 14-16 above). The Court finds no evidence to suggest that the measure in question was not compliant with domestic law or that the effects of the relevant legislation had not been sufficiently foreseeable to satisfy the quality requirement inherent in the expression “in accordance with the law”, within the meaning of Article 8 § 2. (b) Legitimate aim 38. The Government considered that this interference could be regarded as satisfying at least two of the legitimate aims provided for in Article 8 § 2 of the Convention. The family-affairs judge had certainly been required to take account of the protection of the rights and freedoms of others, because the applicant ’ s alcoholism had been considered as part of the cause of the violence he had been inflicting on his wife at the time, and the judge had also had a duty to protect the health and morals of the children, in respect of whom a right of visiting and staying contact had been granted to their father. 39. The applicant, for his part, considered that the interference with his private life had not pursued any legitimate aim. 40. The Court considers, in view of the circumstances of the case, that the aim of the impugned measure was to protect the rights of the applicant ’ s wife, who was seeking to establish a correlation between her husband ’ s aggressive behaviour and his alcohol dependence to support her petition for divorce on grounds of fault by her husband alone. Accordingly, the aim of the interference was to “protect the rights and freedoms of others”, namely the spouse ’ s right to produce evidence in order to succeed in her claims. Moreover, the Court need not examine the second aim alleged by the Government, the protection of the health or morals of the couple ’ s children, since, in any event, the existence of the first has shown that, in its principle, the impugned measure pursued a legitimate aim. (c) “Necessary in a democratic society” 41. The Government lastly argued that the alleged interference had met the requirement of being necessary in a democratic society. They took the view that to find such documents inadmissible would prevent courts from ruling on situations that might present a risk for the health, morals or stability of other family members, especially where there were alcohol-related problems. They added that the fact of excluding documents obtained by duress or fraud fulfilled the State ’ s positive obligation under Article 8 of the Convention. The Government further indicated that the Court of Appeal had maintained the applicant ’ s right of contact in respect of his children pending the results of the expert ’ s report, and inferred from this that any interference would thus, in any event, have been proportionate. Lastly, they observed that such interference, when compared with that in Z v. Finland (cited above) and M.S. v. Sweden, ( 27 August 1997, Reports 1997 ‑ IV ), appeared far less significant and was circumscribed by the requisite safeguards. 42. The applicant argued that, even supposing the interference had pursued a legitimate aim, the method used could not, in any event, be regarded as proportionate to the breach of his right to respect for his private life. 43. In order to ascertain whether the impugned measure was “necessary in a democratic society”, the Court will consider, in the light of the case as a whole and having regard to the margin of appreciation enjoyed by the State in such matters, whether the reasons adduced to justify it were relevant and sufficient and whether the measure was proportionate to the legitimate aim pursued. 44. The Court firstly reiterates that the protection of personal data, not least medical data, is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention, bearing in mind that respect for the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. Consequently, domestic law must therefore afford appropriate safeguards to prevent any communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention (see Z v. Finland, cited above, § 95). 45. The Court notes at the outset that the present case concerns civil proceedings in the area of divorce, which by definition are proceedings during which information on the intimacy of private and family life may be revealed and where it is in fact part of a court ’ s duty to interfere in the couple ’ s private sphere in order to weigh up the conflicting interests and settle the dispute before it. However, in the Court ’ s view, any unavoidable interference in this connection should be limited as far as possible to that which is rendered strictly necessary by the specific features of the proceedings and by the facts of the case (see, mutatis mutandis, Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001 ‑ VI, concerning conditions of detention under Article 3 of the Convention, and H. v. France, no. 11799/85, Commission decision of 5 October 1988, unreported, concerning interference with the right to respect for family life in connection with an applicant ’ s detention). 46. In the particular circumstances of the case, the Court does not find compelling the Government ’ s argument that the breach of the applicant ’ s right to respect for his private life was justified. Whilst the impugned measure may appear justified at first sight, it does not stand up to closer scrutiny. As the Government themselves have acknowledged (see paragraph 30 above), the production of the disputed document was not decisive in the granting of the divorce on grounds of fault by the applicant alone and was in fact only one of the items of evidence on which the domestic courts based their findings. The relevant domestic decisions referred, above all, to testimony concerning the applicant ’ s alcohol addiction and to the “duly substantiated” medical certificates referring to “the reality of the acts of violence to which [ the wife had] been subjected”, thus concluding that the acts attributable to the husband constituted serious and repeated breaches of marital duties and obligations which had led to an irretrievable breakdown in the marriage. In reality, it was only on an alternative and secondary basis that the domestic courts used the disputed medical document in justifying their decisions, and it thus appears that they could have declared it inadmissible and still reached the same conclusion. In other words, the impugned interference with the applicant ’ s right to respect for his private life, in view of the fundamental importance of the protection of personal data, was not proportionate to the aim pursued and was therefore not “necessary in a democratic society for the protection of the rights and freedoms of others”. 47. Lastly, as the Court has already observed (see paragraph 33 in fine above), the domestic law does not afford sufficient safeguards in respect of the use of data relating to the private life of parties to proceedings of this kind, except for those guarantees referred to by the Government (see paragraph 29 above), and this a fortiori justifies strict scrutiny of the necessity of such measures within the meaning of Article 8 § 2 of the Convention. 48. Accordingly, in the light of the foregoing, there has been a violation of Article 8 § 2 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 49. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 50. The applicant claimed 20,000 euros (EUR) in respect of alleged non-pecuniary damage. He presented a medical certificate dated 7 December 2005 indicating that his medical disorders “[had] been accentuated by his difficult family situation over the past few years”. As regards pecuniary damage, he explained that he was not in a position to evaluate or substantiate the losses he had actually sustained as a direct result of the violation of Article 8 of the Convention or to produce any supporting documents in this connection. 51. The Government considered that these claims were manifestly excessive and bore no relation to the alleged grievance. They noted that the applicant had been unable to evaluate or substantiate the losses sustained and had provided no details as to the existence, nature or amount of the pecuniary damage claimed, nor as to its causal link with the alleged violation. As regards non-pecuniary damage, the Government considered that the production of the medical certificate was not capable of proving that damage with certainty. 52. The Court fails, in any event, to find any causal link between the violation observed and the alleged pecuniary damage, and it dismisses this claim. It further considers that the finding of a violation constitutes sufficient just satisfaction for the non-pecuniary damage sustained. B. Costs and expenses 53. The applicant pointed out that he had been granted legal aid in the proceedings before the French courts. However, he explained that he had incurred considerable costs for travel, correspondence and telecommunications, estimating the total amount at EUR 1,000. The applicant further indicated that, in the proceedings before the Court, he had been awarded an amount by the Council of Europe by way of legal aid, and he thus considered that there were no justifiable expenses. 54. The Government submitted that the travel expenses could not give rise to compensation in the context of costs and expenses incurred before the domestic courts. Moreover, they noted that supporting documents had not been kept and inferred that the costs and expenses could not be duly substantiated. 55. According to the Court ’ s case-law, in order for costs and expenses to be awarded, the applicant must establish that they were actually and necessarily incurred and reasonable as to quantum. In the present case, and having regard to the information in its possession and to the criteria set out above, the Court dismisses the claim for costs and expenses incurred in the domestic proceedings. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the interference in the applicant’s private life had not been justified in view of the fundamental importance of protecting personal data. It observed in particular that it was only on a subsidiary basis that the French courts had referred to the impugned medical report in support of their decisions, and it therefore appeared that they could have reached the same conclusion without it. The Court further noted that domestic law did not provide sufficient safeguards as regards the use in this type of proceedings of data concerning the parties’ private lives, thus justifying a fortiori the need for a strict review as to the necessity of such measures. |
573 | Cases in which the Court found no violation of Article 4 of Protocol No. 4 | RELEVANT LEGAL FRAMEWORK AND PRACTICE I. DOMESTIC LAW AND PRACTICE A. Institutional Law no. 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”) 32. The relevant provisions of the LOEX as in force at the material time read as follows: Section 25 – Conditions for entering Spain “1. Aliens seeking to enter Spain must do so at the authorised border crossing points. They must be in possession of a passport or travel document that provides proof of their identity and is accepted for that purpose under the international conventions to which Spain is a party, and must not be subject to an explicit entry ban. They must also present the documents required by the implementing regulations [of the present Law] explaining the purpose and conditions of their stay, and must provide proof that they have sufficient funds for the expected duration of their stay in Spain or have the means of obtaining them lawfully. ... 3. The preceding paragraphs shall not apply to aliens claiming the right of asylum on entering Spain. Such claims shall be dealt with under the specific legislation on asylum.” Section 27 – Issuance of visas “1. Visas shall be requested and issued in the Spanish diplomatic missions and consulates, save in the exceptional circumstances laid down in the regulations or in those cases where the Spanish State, in accordance with the Community legislation in this sphere, has entered into a representation agreement with another European Union Member State concerning transit or residence visas. ...” Section 58 – Effects of expulsion and removal ( devolución ) “... 3. The creation of an expulsion file is not required for the removal of aliens who ... (b) attempt to enter the country illegally; ...” Section 65 – Possibility of appeal against decisions concerning aliens “... 2. In all cases, where the alien concerned is not in Spain, he or she may submit the relevant administrative or judicial appeals through the diplomatic or consular representations, which shall forward them to the competent authorities.” 33. Institutional Law no. 4/2015 of 30 March 2015 on the protection of citizens’ safety introduced the tenth additional provision into the LOEX. The provision has been in force since 1 April 2015 (after the events in the present case). It lays down special rules for the interception and removal of migrants in Ceuta and Melilla. The provision in question reads as follows: “1. Aliens attempting to penetrate the border containment structures in order to cross the border in an unauthorised manner, and whose presence is detected within the territorial demarcation lines of Ceuta or Melilla, may be returned in order to prevent their illegal entry into Spain. 2. Their return shall in all cases be carried out in compliance with the international rules on human rights and international protection recognised by Spain. 3. Applications for international protection shall be submitted in the places provided for that purpose at the border crossing points; the procedure shall conform to the standards laid down concerning international protection.” B. Law no. 12/2009 of 30 October 2009 on asylum and subsidiary protection 34. The relevant provisions of the Law on asylum read as follows: Section 21 – Requests made at a border crossing point “1. Where a person not satisfying the conditions for entry into Spain applies for international protection at a border crossing point, the Minister of the Interior may declare the application inadmissible by a reasoned decision where it falls into one of the categories referred to in section 20(1). In any event the decision shall be served on the person concerned within a maximum period of four days from submission of the application. ...” Section 38 – Applications for international protection in embassies and consulates “In order to examine applications made outside the country, and provided that the applicant is not a national of the State in which the diplomatic representation is located and that there is a risk to his or her physical integrity, the ambassadors of Spain may facilitate the transfer of the asylum-seeker or asylum-seekers to Spain for the purposes of submitting an asylum claim in accordance with the procedure laid down by this Law. The implementing rules for this Law shall lay down expressly the conditions of access to the embassies and consulates for persons seeking international protection, and the procedure for assessing the need to transfer them to Spain.” C. Royal Decree no. 203/1995 of 10 February 1995 (implementing regulations for the Law on asylum) 35. The relevant provisions of Royal Decree no. 203/1995 read as follows: Article 4 – Place of lodging of the application “1. Aliens seeking asylum in Spain shall lodge their application with one of the following entities: (a) the Asylum and Refugees Office; (b) the border posts for entry into Spanish territory; (c) Aliens Offices; (d) the provincial or district police stations designated by ministerial order; (e) Spain’s diplomatic missions or consulates abroad. 2. Where the UNHCR’s representative in Spain makes a request to the Spanish Government for the urgent admission of one or more refugees under UNHCR’s mandate who are at high risk in a third country, the Ministry of Foreign Affairs, via the diplomatic mission or consulate of Spain or of another country ... shall issue visas ... to facilitate the transfer of the persons concerned to Spain in conformity with Articles 16 and 29 (4) of this decree.” Article 16 – Transfer of the asylum-seeker to Spain “Where the person concerned is at risk and has submitted his or her application from a third country through a diplomatic mission or a consulate or in the circumstances provided for in Article 4 (2), the Asylum and Refugees Office may submit the case to the Inter-ministerial Committee on Asylum and Refugees with a view to authorising the person’s transfer to Spain pending examination of the file, after the issuance of the corresponding visa, laissez-passer or entry authorisation, which shall be processed as a matter of urgency. 2. The Asylum and Refugees Office shall communicate the approval of the Inter ‑ ministerial Committee to the Ministry of Foreign Affairs and to the Directorate-General of Police, which shall inform the relevant border post. 3. An asylum-seeker whose transfer to Spain has been authorised on account of the risks he or she faces shall be informed of his or her rights under Part 2 of Chapter I of this decree. He or she shall have a maximum period of one month from his or her entry into Spanish territory in which to exercise those rights. 4. The competent body of the Ministry of Social Affairs shall adopt the appropriate measures for reception of the asylum-seeker by the designated public or private institution.” Article 24 – General processing rules “1. The interested party may submit such documentation and additional information as he or she considers appropriate, and formulate such allegations as he or she deems necessary in support of his or her application, at any time during the processing of the file by the Asylum and Refugees Office. These actions must be verified prior to the hearing preceding the sending of the file to the Inter-ministerial Committee on Asylum and Refugees, in accordance with section 6 of Law no. 5/1984, which governs the right to asylum and refugee status. 2. The Asylum and Refugees Office may request such reports as it deems appropriate from the organs of the State administration or from any other public entity. 3. Likewise, the reports of UNHCR and of the legally recognised associations providing advice and assistance to refugees shall be included in the file where appropriate. 4. The maximum period for processing the file shall be six months. If no decision has been taken on the asylum application on expiry of this period, the application may be considered to have been rejected, without prejudice to the obligation of the administrative authorities to take an express decision. In cases where the application is processed by a diplomatic or consular mission, the six-month period shall begin to run from the date of receipt of the application by the Asylum and Refugees Office. 5. Where the procedure is halted for reasons attributable to the asylum-seeker, the Asylum and Refugees Office shall inform him or her that the procedure will expire after three months. If this period expires without the individual in question carrying out the necessary actions to revive the procedure, the procedure shall be discontinued and the interested party shall be notified at his or her last known address.” Article 29 – Effects of granting asylum “... 4. Where the applicant has presented his or her application at a Spanish diplomatic or consular mission, these entities shall issue the visa or entry authorisation necessary for his or her travel to Spain, together with a travel document if necessary, as provided for by Article 16.” D. Royal Decree no. 557/2011 of 20 April 2011 (implementing regulations for the LOEX) 36. The relevant provisions of Royal Decree no. 557/2011 read as follows: Article 1 – Entry via authorised crossing points “1. Without prejudice to the provisions of the international conventions to which Spain is a party, aliens seeking to enter Spanish territory must do so via the authorised border crossing points. They must be in possession of a valid passport or travel document that provides proof of their identity and is accepted for that purpose, and, where required, of a valid visa. They must not be subject to an explicit entry ban. They must also present the documents required by these regulations explaining the purpose and conditions of their entry and stay, and must provide proof that they have sufficient funds for the expected duration of their stay in Spain or, where applicable, that they have the means of obtaining them lawfully. ...” Article 4 – Conditions “1. The entry of foreign nationals into Spanish territory shall be subject to compliance with the following conditions. (a) They must be in possession of the passport or travel documents referred to in the next Article. (b) They must be in possession of the relevant visa in accordance with Article 7. (c) [They must present] supporting documents concerning the purpose and conditions of their entry and stay, in accordance with Article 8. (d) [They must provide] a guarantee, where applicable, that they have sufficient funds to live on for the expected duration of their stay in Spain, or that they have the means of obtaining those funds, and sufficient funds for travel to another country or return to the country from which they arrived, in accordance with Article 9. (e) They must present, where applicable, the health certificates referred to in Article 10. (f) They must not be subject to an entry ban for the purposes of Article 11. (g) They must not present a danger to public health, public order, national security or Spain’s international relations or those of other States to which Spain is linked by a convention for this purpose. 2. The Office of the Commissioner-General for Aliens and Borders ( Comisaría General de Extranjería y Fronteras ) may grant permission to enter Spain to aliens not satisfying the conditions set forth in the previous paragraph, where this is justified on exceptional humanitarian or public-interest grounds or in order to comply with the undertakings entered into by Spain.” Article 23 – Removals “1. In accordance with section 58(3) of the LOEX, the creation of an expulsion file is not necessary ... for the removal of aliens in the following circumstances. ... (b) Persons attempting to enter the country illegally. Aliens intercepted at the border or in the vicinity will be considered to fall into this category. 2. In the cases covered by sub-paragraph (b) above, members of the coastal and border security forces who apprehend an alien attempting to enter Spain in an unauthorised manner shall take him or her to the police station immediately with a view to his or her identification and, where applicable, removal. 3. In all cases covered by paragraph 1, aliens in respect of whom steps are being taken with a view to the adoption of a removal order shall have the right to be assisted by a lawyer, and by an interpreter if they do not understand or speak the official languages used. Such assistance shall be free of charge where the person concerned lacks the necessary financial resources ...” E. The Guardia Civil border control operations protocol of 26 February 2014 (as applicable at the relevant time), which introduced the term “operational border” 37. The parts of the border control operations protocol of relevance to the present case read as follows: “With this system of fences, there is an objective need to determine when illegal entry has failed and when it has taken place. This requires defining the line which delimits the national territory, for the sole purpose of the rules governing aliens, a line which takes the physical form of the fence in question. Hence, where attempts by migrants to cross this line illegally are contained and repelled by the law ‑ enforcement agencies responsible for controlling the border, no actual illegal entry is deemed to have taken place. Entry is deemed to have been effected only where a migrant has penetrated beyond the above-mentioned internal fence, thereby entering the national territory and coming within the scope of the rules governing aliens ...” F. Circular letter to all Spanish ambassadors 38. The relevant parts of this circular read as follows: “Law no. 12/2009 of 30 October 2009 on asylum and subsidiary protection, published in the Official Gazette on Saturday 31 October 2009 ... [Section 38 of this Law concerns ‘persons applying for international protection in embassies and consulates’] ... The key elements of this section are as follows. (1) This section is not applicable if the person concerned is a national of the country where the diplomatic representation is located. (2) In addition, his or her physical integrity must be at risk from causes linked to the scope of application of the Law (asylum or subsidiary protection). (3) It is the task of Spanish ambassadors (but under no circumstances of consuls) to ‘facilitate [where appropriate] the transfer of the asylum-seeker or asylum-seekers to Spain’ for the sole purpose of ‘submitting the asylum claim in accordance with the procedure laid down by this Law’, that is to say, in Spain. This authority lies with the ambassadors alone. At all events neither ambassadors nor consuls are authorised by law to take a decision on applications for asylum or protection, still less to inform Spain thereof. This is crucial. If such a decision were to be taken, the Spanish State would be obliged to provide [the asylum-seeker with] legal assistance and protection [including against refoulement from the country] and to meet his or her needs (in terms of food and housing), including healthcare needs; section 38 makes no provision for this. Consequently, the fact that someone seeks to lodge an asylum application with an embassy or consulate does not in any circumstances entail the start of a procedure for possible admission. This does not prevent the ambassador, if he or she has determined that the conditions set out above are satisfied in a given case, from confirming the actual nationality [of the person concerned] and verifying whether his or her physical safety is at risk in the manner described above. Every effort must be made to obtain as much information as possible and to compile full records of the case and the allegations made by the potential applicant for asylum or protection. These are to be sent to the Directorate of Consular Affairs and Migration so that the supervisory authority can take cognisance of them, assess them and take a decision. In sum, if in the exercise of his or her duties the ambassador considers that ‘there is a risk to [the asylum-seeker’s] physical integrity’, he or she may secure the person’s transfer to Spain (this may entail issuing a visa and a one-way airline ticket to Spain, subject to prior approval by the Ministry). The second sub-section of section 38 provides for the adoption of implementing regulations, to be drawn up jointly by the Ministries of the Interior, Justice and Foreign Affairs. These regulations will lay down the procedure enabling ambassadors to assess the issue of possible transfer to Spain. With regard to proceedings already in progress, the first transitional provision provides, where relevant, for application of the rules in force prior to the entry into force of the new Law (which will apply as of today, 20 November 2009). For new cases, and until such time as the implementing rules for the Law, referred to in the second sub-section of section 38, enter into force, you should follow the instructions set out in this circular. ... Madrid, 20 November 2009”. G. The Spanish Ombudsperson’s Office 39. In his 2005 annual report, the Spanish Ombudsperson wrote as follows: “As regards the issue whether the border zone should be regarded as Spanish territory and, accordingly, which rules are applicable to it, [it can be asserted, in] the light of the various conventions signed during the nineteenth century between Spain and Morocco defining the jurisdictional limits of the autonomous city of Melilla, that the zone is constructed ... on Spanish territory, that Spain has full ownership [of the area in question] and that it is controlled by the Spanish law-enforcement agencies. It is therefore not for the Spanish administrative authorities to determine where our country’s legislation should start to apply. That territorial application is governed by international treaties or, where applicable, by international custom, which define the borders with neighbouring States.” 40. In presenting her 2013 annual report to the Senate on 9 April 2014 the Spanish Ombudsperson “deplored the heart-rending images of people who had climbed to the top of the fences and stressed that once a person was on Spanish territory – as we believe to be the case [when he or she is on the fences of the Melilla border] – he or she should be dealt with in accordance with the law in force”. The Ombudsperson therefore condemned the practice of immediate removals ( devoluciones en caliente ), which, she reiterated, were not provided for under the LOEX. II. EUROPEAN UNION LAW A. Treaty on European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009) 41. The relevant Articles of the Treaty on European Union provide as follows: Article 2 “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities ...” Article 6 “ 1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. ... 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.” B. Charter of Fundamental Rights of the European Union 42. The relevant provisions of the Charter read as follows: Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 18 – Right to asylum “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.” Article 19 - Protection in the event of removal, expulsion or extradition “1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” Article 47 – Right to an effective remedy and to a fair trial “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone is to have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.” C. Treaty on the Functioning of the European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009) 43. The relevant provisions of the Treaty on the Functioning of the European Union (TFEU) provide: AREA OF FREEDOM, SECURITY AND JUSTICE CHAPTER 1 General provisions Article 67 “1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. 2. It ... shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third ‑ country nationals ...” Article 72 “This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.” CHAPTER 2 Policies on border checks, asylum and immigration Article 77 “1. The Union shall develop a policy with a view to: (a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders; (b) carrying out checks on persons and efficient monitoring of the crossing of external borders; (c) the gradual introduction of an integrated management system for external borders. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning: (a) the common policy on visas and other short-stay residence permits; (b) the checks to which persons crossing external borders are subject; (c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period; (d) any measure necessary for the gradual establishment of an integrated management system for external borders; (e) the absence of any controls on persons, whatever their nationality, when crossing internal borders. 3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament. 4. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.” Article 78(1 ) “1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.” Article 79 “1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas: (a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification; ... (c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation; ...” D. The Agreement on the accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen on 19 June 1990 44. The relevant parts of this Agreement read as follows: “... III. The Contracting Parties take note of the following declarations by the Kingdom of Spain: Declaration concerning the cities of Ceuta and Melilla; (a) The current controls on goods and travellers coming from the cities of Ceuta and Melilla prior to their introduction into the customs territory of the European Economic Community shall continue to be applied by Spain in accordance with the provisions of Protocol 2 of the Act of Accession of Spain to the European Communities. (b) The specific visa exemption regime for small border traffic between Ceuta and Melilla and the Moroccan provinces of Tetuan and Nador will also continue to apply. (c) Moroccan nationals not residents in the provinces of Tetuan and Nador and wishing to enter exclusively the cities of Ceuta and Melilla shall remain subject to a visa requirement. The validity of this visa will be limited to the two above-mentioned cities and will allow multiple entries and exits (" visado limitado múltiple "), in accordance with the provisions of Articles 10(3) and 11(1)(a) of the 1990 Convention. (d) In applying this regime the interests of the other Contracting Parties shall be taken into account. (e) In application of its national legislation and in order to verify whether passengers continue to comply with the conditions listed in Article 5 of the 1990 Convention, by virtue of which they were authorised to enter national territory upon passport control at the external border, Spain will maintain controls (identity and document controls) on sea and air connections from Ceuta and Melilla having as their sole destination any other place on Spanish territory. To this same end, Spain shall maintain checks on domestic flights and on regular ferry connections departing from the cities of Ceuta and Melilla to a destination in another State party to the Convention.” E. Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) 45. The relevant provisions of the Schengen Borders Code read as follows: “THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, ... Whereas: ... (6) Border control is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control. Border control should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations. ...” Article 1 - Subject matter and principles “This Regulation provides for the absence of border control of persons crossing the internal borders between the Member States of the Union. It lays down rules governing border control of persons crossing the external borders of the Member States of the Union.” Article 4 – Crossing of external borders “1. External borders may be crossed only at border crossing points and during the fixed opening hours. The opening hours shall be clearly indicated at border crossing points which are not open 24 hours a day. ... 3. Without prejudice to the exceptions provided for in paragraph 2 or to their international protection obligations, Member States shall introduce penalties, in accordance with their national law, for the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours. These penalties shall be effective, proportionate and dissuasive.” Article 6 – Conduct of border checks “1. Border guards shall, in the performance of their duties, fully respect human dignity. Any measures taken in the performance of their duties shall be proportionate to the objectives pursued by such measures. 2. While carrying out border checks, border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” Article 7 - Border checks on persons “1. Cross-border movement at external borders shall be subject to checks by border guards. Checks shall be carried out in accordance with this chapter. ... 2. All persons shall undergo a minimum check in order to establish their identities on the basis of the production or presentation of their travel documents. Such a minimum check shall consist of a rapid and straightforward verification, where appropriate by using technical devices and by consulting, in the relevant databases, information exclusively on stolen, misappropriated, lost and invalidated documents, of the validity of the document authorising the legitimate holder to cross the border ... 3. On entry and exit, third-country nationals shall be subject to thorough checks. ...” Article 12 – Border surveillance “1. The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally. ...” Article 13 - Refusal of entry “1. A third-country national who does not fulfil all the entry conditions laid down in Article 5(1) and does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas. ...” Article 14 - Staff and resources for border control “Member States shall deploy appropriate staff and resources in sufficient numbers to carry out border control at the external borders, in accordance with Articles 6 to 13, in such a way as to ensure an efficient, high and uniform level of control at their external borders.” F. Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (codification) 46. The codified version of Articles 14 and 15 of the Schengen Borders Code corresponds to former Articles 13 and 14. G. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals (“the Return Directive”) 1. The text of the Directive 47. The relevant provisions of the Return Directive read as follows: Article 1 – Object “This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.” Article 2 – Scope “1. This Directive applies to third-country nationals staying illegally on the territory of a Member State. 2. Member States may decide not to apply this Directive to third-country nationals who: (a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State; ...” Article 4 – More favourable provisions “... 3. This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive. 4. With regard to third-country nationals excluded from the scope of this Directive in accordance with Article 2(2)(a), Member States shall: (a) ensure that their treatment and level of protection are no less favourable than as set out in Article 8(4) and (5) (limitations on use of coercive measures), Article 9(2)(a) (postponement of removal), Article 14(1) (b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 16 and 17 (detention conditions) and (b) respect the principle of non-refoulement.” Article 5 – Non-refoulement, best interests of the child, family life and state of health “ When implementing this Directive, Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the third-country national concerned, and respect the principle of non-refoulement.” Article 8 – Removal “1. Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7. ...” Article 12 – Form “ 1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences. ...” Article 13 – Remedies “1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. 2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation. 3. The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance. 4. Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC.” 2. Relevant case-law of the CJEU in relation to this Directive 48. The principles established by the case-law of the Court of Justice of the European Union (“the CJEU”) concerning the right to be heard under the Return Directive are set out in detail in the judgment in Khlaifia and Others (cited above, §§ 42-45). In a recent ruling (judgment of 7 June 2016, Affum, C-47/15), the CJEU clarified the interpretation to be given to Article 2 § 2 (a) of that directive, stating that it concerned third-country nationals who had been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the border or near that border after it had been so crossed. The relevant paragraphs of the judgment read as follows: “72. Finally, still in relation to that second situation, Article 2(2)(a) of Directive 2008/115 specifies that the apprehension or interception of the third-country nationals concerned must take place ‘in connection with the irregular crossing’ of an external border, which, as Ms Affum, the Greek Government and the Commission submit in essence, and as the Advocate General has observed in point 41 of his Opinion, implies a direct temporal and spatial link with that crossing of the border. That situation therefore concerns third-country nationals who have been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the border or near that border after it has been so crossed. 73. In the second place, it is to be noted that the exception provided for in Article 2(2)(a) of Directive 2008/115, unlike the exception provided for in Article 2(2)(b), is coupled with certain obligations which are set out in Article 4(4) of the directive. 74. The fact that Article 4(4) of Directive 2008/115 thus regulates in detail the exercise by the Member States of the power provided for in Article 2(2)(a) of the directive can be explained, as the Commission set out at the hearing, by the purpose of Article 2(2)(a), as apparent from the directive’s history, of permitting the Member States to continue to apply simplified national return procedures at their external borders, without having to follow all the procedural stages prescribed by the directive, in order to be able to remove more swiftly third-country nationals intercepted when crossing those borders. Article 4(4) of Directive 2008/115 is intended in that context to ensure that those simplified national procedures observe the minimum guarantees prescribed by the directive, which include, in particular, the detention conditions laid down in Articles 16 and 17.” The CJEU has also defined the expression “irregular crossing of a border” as a crossing that does not fulfil “the conditions imposed by the legislation applicable in the Member State in question” and which must necessarily be considered “irregular” within the meaning of Article 13 § 1 of the Dublin III Regulation (judgment of 26 July 2017, Jafari, C-646/16, §§ 74 et seq.). The CJEU’s judgment of 19 March 2019 in Arib (C-444/17) is also interesting in this regard as it reiterates that, according to the CJEU’s case-law, the two situations covered by Article 2 § 2 (a) of Directive 2008/115 relate exclusively to the crossing of a member State’s external border, as defined in Article 2 of the Schengen Borders Code, and do not concern the crossing of a common border of member States forming part of the Schengen Area (see Affum, cited above, § 69). H. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [subsequent version: Directive 2013/32/EU of 26 June 2013] 49. The relevant provisions of Directive 2005/85/EC read as follows: Article 6 – Access to the procedure “1. Member States may require that applications for asylum be made in person and/or at a designated place. 2. Member States shall ensure that each adult having legal capacity has the right to make an application for asylum on his/her own behalf. 3. Member States may provide that an application may be made by an applicant on behalf of his/her dependants. In such cases Member States shall ensure that dependant adults consent to the lodging of the application on their behalf, failing which they shall have an opportunity to make an application on their own behalf. Consent shall be requested at the time the application is lodged or, at the latest, when the personal interview with the dependant adult is conducted. ... 5. Member States shall ensure that authorities likely to be addressed by someone who wishes to make an application for asylum are able to advise that person how and where he/she may make such an application and/or may require these authorities to forward the application to the competent authority.” Article 7 – Right to remain in the Member State pending the examination of the application “1. Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. ...” Article 8 – Requirements for the examination of applications “1. Without prejudice to Article 23(4)(i), Member States shall ensure that applications for asylum are neither rejected nor excluded from examination on the sole ground that they have not been made as soon as possible. 2. Member States shall ensure that decisions by the determining authority on applications for asylum are taken after an appropriate examination. To that end, Member States shall ensure that: (a) applications are examined and decisions are taken individually, objectively and impartially; (b) precise and up-to-date information is obtained from various sources, such as the United Nations High Commissioner for Refugees (UNHCR), as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions; (c) the personnel examining applications and taking decisions have the knowledge with respect to relevant standards applicable in the field of asylum and refugee law. 3. The authorities referred to in Chapter V shall, through the determining authority or the applicant or otherwise, have access to the general information referred to in paragraph 2(b), necessary for the fulfilment of their task. 4. Member States may provide for rules concerning the translation of documents relevant for the examination of applications.” Article 9 – Requirements for a decision by the determining authority “1. Member States shall ensure that decisions on applications for asylum are given in writing. 2. Member States shall also ensure that, where an application is rejected, the reasons in fact and in law are stated in the decision and information on how to challenge a negative decision is given in writing. Member States need not state the reasons for not granting refugee status in a decision where the applicant is granted a status which offers the same rights and benefits under national and Community law as the refugee status by virtue of Directive 2004/83/EC. In these cases, Member States shall ensure that the reasons for not granting refugee status are stated in the applicant’s file and that the applicant has, upon request, access to his/her file. Moreover, Member States need not provide information on how to challenge a negative decision in writing in conjunction with a decision where the applicant has been provided with this information at an earlier stage either in writing or by electronic means accessible to the applicant. 3. For the purposes of Article 6(3), and whenever the application is based on the same grounds, Member States may take one single decision, covering all dependants.” Article 10 - Guarantees for applicants for asylum “1. With respect to the procedures provided for in Chapter III, Member States shall ensure that all applicants for asylum enjoy the following guarantees: (a) they shall be informed in a language which they may reasonably be supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. They shall be informed of the time-frame, as well as the means at their disposal for fulfilling the obligation to submit the elements as referred to in Article 4 of Directive 2004/83/EC. This information shall be given in time to enable them to exercise the rights guaranteed in this Directive and to comply with the obligations described in Article 11; (b) they shall receive the services of an interpreter for submitting their case to the competent authorities whenever necessary. Member States shall consider it necessary to give these services at least when the determining authority calls upon the applicant to be interviewed as referred to in Articles 12 and 13 and appropriate communication cannot be ensured without such services. In this case and in other cases where the competent authorities call upon the applicant, these services shall be paid for out of public funds; (c) they shall not be denied the opportunity to communicate with the UNHCR or with any other organisation working on behalf of the UNHCR in the territory of the Member State pursuant to an agreement with that Member State; (d) they shall be given notice in reasonable time of the decision by the determining authority on their application for asylum. If a legal adviser or other counsellor is legally representing the applicant, Member States may choose to give notice of the decision to him/her instead of to the applicant for asylum; (e) they shall be informed of the result of the decision by the determining authority in a language that they may reasonably be supposed to understand when they are not assisted or represented by a legal adviser or other counsellor and when free legal assistance is not available. The information provided shall include information on how to challenge a negative decision in accordance with the provisions of Article 9(2). 2. With respect to the procedures provided for in Chapter V, Member States shall ensure that all applicants for asylum enjoy equivalent guarantees to the ones referred to in paragraph 1(b), (c) and (d) of this Article.” I. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) 50. The relevant provisions of Directive 2011/95/EU read as follows: Article 14 - Revocation of, ending of or refusal to renew refugee status “... 4. Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental, administrative, judicial or quasi-judicial body, when: (a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present; (b) he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State. 5. In situations described in paragraph 4, Member States may decide not to grant status to a refugee, where such a decision has not yet been taken. ...” 51. In its judgment of 14 May 2019 (C-391/16, C-77/17 and C-78/17, M. v. Ministerstvo vnitra and Others ), the CJEU clarified the interpretation of the terms “refugee” and “refugee status” for the purposes of Article 2(d) and Article 2(e) respectively of this directive and also, among other points, the material conditions required in order for a third-country national or stateless person to be regarded as a refugee. The relevant paragraphs of the CJEU judgment read as follows: “84. ... it should be noted that, regarding the term ‘refugee’, Article 2(d) of that directive reproduces, in essence, the definition set out in Article 1(A)(2) of the Geneva Convention. In that regard, the provisions of Chapter III of Directive 2011/95, entitled ‘Qualification for being a refugee’ provide clarification regarding the material conditions necessary to enable a third-country national or a stateless person to be considered a refugee for the purposes of Article 2(d) of that directive. 85. For its part, Article 2(e) of Directive 2011/95 defines ‘refugee status’ as ‘the recognition by a Member State of a third-country national or a stateless person as a refugee’. As can be seen from recital 21 of that directive, that recognition is declaratory and not constitutive of being a refugee. ... 90. The fact that being a ‘refugee’ for the purposes of Article 2(d) of Directive 2011/95 and Article 1(A) of the Geneva Convention is not dependent on formal recognition thereof through the granting of ‘refugee status’ as defined in Article 2(e) of that directive is, moreover, borne out by the wording of Article 21(2) of that directive, which states that a ‘refugee’ may, in accordance with the condition laid down in that provision, be refouled ‘whether formally recognised or not’. ... 95. Thus, where the refoulement of a refugee covered by one of the scenarios referred to in Article 14(4) and (5) and Article 21(2) of Directive 2011/95 would expose that refugee to the risk of his fundamental rights, as enshrined in Article 4 and Article 19(2) of the Charter, being infringed, the Member State concerned may not derogate from the principle of non-refoulement under Article 33(2) of the Geneva Convention. ... 105. It must therefore be held that Member States, when implementing Article 14(4) or (5) of that directive, are, in principle, required to grant refugees who are present in their respective territories only the rights expressly referred to in Article 14(6) of that directive and the rights set out in the Geneva Convention that are guaranteed for any refugee who is present in the territory of a Contracting State and do not require a lawful stay.” J. European Parliament resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI)) 52. The relevant parts of this resolution read as follows: “The European Parliament, ... 73. Recalls that, since the establishment of the Schengen Area, the Union is an area without internal borders, that the Schengen Member States have developed a step ‑ by ‑ step common policy towards the Schengen external borders, and that the inherent logic of such a system has always been that the abolition of internal border controls has to go hand in hand with compensatory measures strengthening the external borders of the Schengen Area and the sharing of information through the Schengen Information System (‘SIS’); 74. Acknowledges that the integrity of the Schengen Area and the abolition of internal border controls are dependent on having effective management of external borders, with high common standards applied by all Member States at the external borders and an effective exchange of information between them; 75. Accepts that the Union needs to strengthen its external border protection and further develop the CEAS [1], and that measures are necessary to enhance the capacity of the Schengen Area to address the new challenges facing Europe and preserve the fundamental principles of security and free movement of persons; 76. Points out that access to the territory of the Schengen Area is generally controlled at the external border under the Schengen Borders Code and that, in addition, citizens of many third countries require a visa to enter the Schengen Area; 77. Reiterates the UNHCR’s call that respect for fundamental rights and international obligations can only be ensured if operating procedures and plans reflect those obligations in practical, clear guidance to border personnel, including those at land, sea and air borders; points out to the need to further strengthen the Union Civil Protection Mechanism in order to respond to events with wide-ranging impacts which affect a significant number of Member States; 78. Emphasises again that, as for legislation specifically in the area of asylum and migration, in order for legislation on internal and external borders to be effective, it is essential that measures agreed at Union level are implemented properly by the Member States; underlines that better implementation of measures by Member States at the external borders, following increased pressure, is essential and will go some way towards allaying the security fears of citizens; ... 80. Considers that the Schengen Area is one of the major achievements of European integration; notes that the conflict in Syria and other conflicts elsewhere in the region have triggered record numbers of refugees and migrants arriving in the Union, which in turn has revealed deficiencies at parts of the Union’s external borders; is concerned at the fact that, in response, some Member States have felt the need to close their internal borders or introduce temporary border controls, thus calling into question the proper functioning of the Schengen Area; ...” III. COUNCIL OF EUROPE DOCUMENTS A. Twenty Guidelines of the Committee of Ministers of the Council of Europe on Forced Return, adopted on 4 May 2005 at the 925th meeting of the Ministers’ Deputies 53. The relevant parts of this document provide as follows: Preamble “... member states have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens on their territory; ... in exercising this right, member states may find it necessary to forcibly return illegal residents within their territory; ...” Guideline 2. Adoption of the removal order “Removal orders shall only be issued in pursuance of a decision reached in accordance with the law. 1. A removal order shall only be issued where the authorities of the host state have considered all relevant information that is readily available to them, and are satisfied, as far as can reasonably be expected, that compliance with, or enforcement of, the order, will not expose the person facing return to: a. a real risk of being executed, or exposed to torture or inhuman or degrading treatment or punishment; b. a real risk of being killed or subjected to inhuman or degrading treatment by non ‑ state actors, if the authorities of the state of return, parties or organisations controlling the state or a substantial part of the territory of the state, including international organisations, are unable or unwilling to provide appropriate and effective protection; or c. other situations which would, under international law or national legislation, justify the granting of international protection. ...” 54. The Committee of Ministers of the Council of Europe took note of the comments on these Guidelines drafted by the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR). The relevant parts concerning the scope of application of the guidelines read as follows: “... The Guidelines apply to procedures leading to the expulsion of non-nationals from the territory of members states of the Council of Europe. Refusals to enter the national territory at the border are not included in their scope of application, although certain norms restated in the Guidelines are applicable to such decisions ...” B. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 55. From 14 to 18 July 2014 a delegation from the CPT visited Spain. One objective of the visit was to examine certain aspects of the treatment of irregular migrants intercepted along the border with Morocco, in the Melilla enclave. 56. In its report published on 9 April 2015 the CPT found as follows: “... 38. The CPT acknowledges that a number of European States have to cope with frequent influxes of irregular migrants. It is notably the case for those countries situated at the external frontiers of the European Union which act as the gateway to the rest of Europe. Spain is one of these countries facing such pressures. 39. The autonomous municipality of Melilla is a Spanish exclave of 12 km² located on the northern coast of Africa, surrounded by Moroccan territory. The autonomous municipality lies on the migration route from North and Sub-Saharan Africa towards Europe; it is also used by Syrian migrants. The delegation was informed that the number of foreign nationals trying to cross Melilla’s border irregularly has increased drastically over the last year and a half. The Guardia Civil is responsible for patrolling the land border and the coast to prevent clandestine entry. The delegation was informed in Melilla that the Guardia Civil has institutionalised co-operation with the Moroccan Gendarmerie but no formal co-operation with the Moroccan Auxiliary Forces (‘MAF’), which have the prime responsibility for border surveillance. 40. The Spanish authorities have built a multi-fence barrier along the 13 km land border separating Melilla from Morocco to prevent irregular migrants from accessing Spanish territory. The CPT notes that it was built within Spanish territory and is therefore, on both sides, under the full jurisdiction of Spain. The barrier consists of a six meter high fence, slightly tilted towards Morocco, a three dimensional tow-line followed by a second three meter high fence and, on the other side of a patrol road, another six meter high fence. At regular intervals, gates have been inserted into the fences to enable access through the barrier from both sides. In addition, a sophisticated CCTV system (including infrared cameras) combined with movement sensors has been installed. Most of the fences are also equipped with anti-climbing grids. 41. On 13 February 1992, Spain concluded a Bilateral Agreement with the Kingdom of Morocco on the movement of persons, transit and readmission of foreign nationals who entered illegally (‘the Readmission Agreement’). According to the Readmission Agreement, ‘following the formal request of the border authorities of the requesting State, border authorities of the requested State shall readmit in its territory the third-country nationals who have illegally entered the territory of the requesting State from the requested State.’ The application for readmission shall be submitted within ten days after the illegal entry into the territory of the requesting State. ... 48. Groups of foreign nationals of varying sizes – from a few persons to a thousand – attempt, on a regular basis, to access Spanish territory. Regarding the attempts to access Spanish territory by sea, the CPT was informed about an incident that took place on 6 February 2014, which was widely reported in the media. Members of the Guardia Civil fired rubber bullets from the beach at persons who were attempting to swim from Moroccan territory to Melilla and forced them to head back to Morocco. However, not all the persons were able to swim back and it was reported that 15 foreign nationals drowned. As regards attempts to access Spanish territory by climbing the border fences, the delegation received consistent allegations, confirmed by video footage, that irregular migrants were stopped within or right after the border by members of the Guardia Civil, occasionally handcuffed, before being immediately forcibly returned to Morocco without being identified. Several foreign nationals also stated to the delegation that they had been returned to Morocco after being apprehended by the Guardia Civil several hundred meters from the border. It seems that the duty of the Guardia Civil was seen as encompassing apprehending irregular migrants on their way to the CETI in Melilla and forcibly returning them to Morocco. Further, foreign nationals were allegedly sometimes returned to Morocco despite the fact that they were injured and could hardly walk (see also paragraph 51). The CPT considers that such practices of immediately and forcibly returning irregular migrants, without any prior identification or screening of their needs, would be clearly contrary to the principles and standards mentioned above. ... 50. ... the CPT recommends that: - clear instructions be given to Spanish law enforcement officials to ensure that irregular migrants who have entered Spanish territory will not be forcibly returned to Morocco prior to an individualised screening with a view to identifying persons in need of protection, assessing those needs and taking appropriate action; - adequate guarantees in this respect be provided in national legislation.” C. The 2015 annual activity report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe (“the Commissioner for Human Rights”), dated 14 March 2016 57. The parts of the report of relevance to the present case read as follows: “1.2. Visits Visit to Spain The Commissioner visited Melilla and Madrid from 13 to 16 January 2015 in order to discuss issues pertaining to the human rights of migrants, refugees and asylum ‑ seekers in Ceuta and Melilla, Spain’s territories in Northern Africa. In Melilla, the Commissioner held meetings with the Government’s Delegate, Mr Abdelmalik El Barkani and the President of the city, Mr Juan José Imbroda Ortiz. He also met with the Head of the Guardia Civil in Melilla, Colonel Ambrosio Martín Villaseñor; the Head of the National Police, Mr José Angel González Jiménez; and representatives of civil society organisations. He visited the border check-point of Beni Ansar, where an office to register asylum claims started operating in November 2014. He also visited the triple-fence surrounding Melilla and the Centre for Temporary Stay of Migrants (CETI), where he met with Centre’s Director, Mr Carlos Montero Díaz, other staff members and with persons accommodated in it. In Madrid, the Commissioner met with the Secretary of State for Security, Mr Francisco Martínez Vázquez. He also met with the Ombudsperson, Ms Soledad Becerril Bustamante, UNHCR’s Representative in Spain and civil society representatives. Additionally, the Commissioner held, on 27 January 2015, an exchange of views with members of the Spanish delegation to the Parliamentary Assembly of the Council of Europe on issues raised during the visit. The main issue of the visit was the draft amendment to the Aliens Act aimed at establishing a special regime for Ceuta and Melilla and allowing the immediate return of migrants who did not enter Ceuta and Melilla through a regular border post. While recognising that Spain has the right to establish its own immigration and border management policies, the Commissioner stressed that it must also uphold its human rights obligations. Therefore, he urged the Spanish authorities to ensure that any future legislation fully comply with these obligations, which include ensuring full access to an effective asylum procedure, providing protection against refoulement and refraining from collective expulsions. He also underscored Spain’s obligation to ensure that no push-backs of migrants occur in practice and to effectively investigate all allegations of excessive use of force against migrants by law enforcement officials at the border. The Commissioner welcomed the opening of an asylum office at one of Melilla’s border check-points and the effective co-operation of the police with UNHCR. At the same time, he highlighted the need to strengthen the asylum system in Melilla so as to allow all persons in need of protection, irrespective of their country of origin, to access the territory safely, to have their situation assessed on an individual basis and to submit international protection claims. Additionally, he urged the authorities to take urgent steps to improve existing arrangements for the reception of migrants in Melilla and clarify rules governing transfers to the mainland. The press release issued at the end of the visit (16 January) is available on the Commissioner’s website. The visit also served as a basis for the written comments the Commissioner submitted to the Court as third party in November on two cases against Spain (N.D. and N.T., Applications No 8675/15 and No. 8697/15). These cases related to alleged pushbacks of migrants from the Spanish city of Melilla to Morocco (see below, European Court of Human Rights). ... 2. Thematic activities ... 2.3. Human rights of immigrants, refugees and asylum seekers Human rights of immigrants, refugees and asylum seekers featured prominently in the Commissioner’s work in 2015. He took an active part in various debates on these issues, reminding Council of Europe member states of their human rights obligations towards immigrants, asylum-seekers and refugees. Issues pertaining to migration were addressed in the Commissioner’s ... ad hoc visits to ... Spain, as well as through third party interventions before the Court. ... 6. European Court of Human Rights In 2015, the Commissioner made extensive use of his right to submit written comments in cases before the European Court of Human Rights, pursuant to Article 36, paragraph 3 of the ECHR. He did so in ... two cases against Spain, relating to alleged push-backs of migrants from the Spanish city of Melilla to Morocco. ... On 12 November 2015, the Commissioner published the written comments he submitted to the Court on two cases against Spain (N.D. and N.T., Applications No. 8675/15 and No. 8697/15) relating to alleged pushbacks of migrants from the Spanish city of Melilla to Morocco. Based inter alia on his visit to Melilla and Madrid from 13 to 16 January 2015 ..., the Commissioner points to the existence of a practice whereby migrants who attempt to enter Melilla in groups by climbing the fence surrounding the city are summarily returned by Spain’s border guards to Morocco. The Commissioner underlines that these returns take place outside of any formal procedure and without identification of the persons concerned or assessment of their individual situation, a circumstance which prevents them from effectively exercising their right to seek international protection in Spain. Additionally, he stresses that migrants summarily returned from Melilla have no access to an effective remedy which would enable them to challenge their removal or seek redress for any ill ‑ treatment they may have been subjected to during such operations.” D. Report dated 3 September 2018 of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees, to Spain, 18 ‑ 24 March 2018 (SG/Inf(2018)25) 58. The relevant parts of this report read as follows: “3. THE SITUATION IN MELILLA AND CEUTA 3.1. Preventing access to the territory Asylum-seekers and migrants in an irregular situation enter into the autonomous cities of Melilla and Ceuta both through the land and sea borders. As regards land borders, Melilla is surrounded by a 12 km triple fence – the external and internal fences are six metres high and the middle one is a lower three dimensional barrier which is a structure of steel cables tied to stakes. The fence is equipped with sensors to detect movements towards its external part. When such movements are detected the Guardia Civil notifies the Moroccan authorities, which in turn often prevent people in the Moroccan territory from jumping the fence. ... On previous occasions, I have drawn attention to practices involving information sharing by the border police with the relevant authorities of a neighbouring country regarding suspected unauthorised border crossings and the subsequent action of the authorities in the neighbouring country to intercept migrants and refugees before they cross the border. I have underlined the questions that these practices raise with regard to the right to seek asylum and the respect for the principle of non- refoulement. It is legitimate that Council of Europe member states, in the exercise of their right to prevent unauthorised border crossings as well as to prevent and combat cross-border criminal activities co-operate with neighbouring countries including through the sharing of relevant information. However, as a matter of principle, member states should exercise human rights due diligence in the context of such co-operation. They should take into account the situation in their neighbouring countries and refrain from sharing information with or requesting the latter to intercept people before they reach member states’ borders when they know, or should have known, that the intercepted persons would as a result be exposed to a real risk of torture or inhuman and degrading treatment or punishment and that they would not be given protection in the neighbouring countries. ... 3.2. Summary returns According to the Spanish Law no. 4/2000 on the rights and freedoms of aliens in Spain and their social integration (the Law on Aliens), foreigners who attempt to cross the border irregularly, including persons intercepted at and near the border, may be denied entry or may be rejected at the border in order to prevent their illegal entry into Spain. In accordance with the Law on Aliens, their return shall in all cases be carried out in compliance with the international human rights standards; applications for international protection shall be submitted in dedicated placed provided for that purpose at the border crossings. The Guardia Civil explained to us that attempts by foreigners to jump the fences happened on a daily basis, although not by massive groups of people as it had been frequently the case in 2016 and 2017. When foreigners attempt to jump the fences in both Melilla and Ceuta the Guardia Civil does not intervene unless they have climbed down the internal fences. In most of the cases foreigners endure physical injuries while jumping over the fences. This is the reason why the authorities have entered into a co-operation protocol with the Spanish Red Cross, which provides immediate medical assistance to intercepted foreigners. The Guardia Civil explained to us that foreigners who jump the fences are usually violent and that they do not communicate with authorities but rather attempt to escape from them. The Guardia Civil also does not seek to establish any communication with foreigners. Hence, no claims for international protection are expressed by foreigners either while climbing or when intercepted at or near the border after jumping the fences. Shortly after receiving the Spanish Red Cross assistance they are returned to Morocco through special doors, which are spread throughout the border fences and are distinct from border-crossing points. Foreigners do not have access to interpreters, lawyers or the asylum offices located at border crossing point. Finally, they are returned to Morocco without any identification or registration having taken place. In a Chamber judgment, the European Court of Human Rights found that the immediate return to Morocco of Sub-Saharan migrants who were attempting to enter into Melilla amounted to a collective expulsion and held that there had been a violation of Article 4 Protocol 4 and Article 13 of the ECHR taken together with Article 4 Protocol 4. The case has been referred to the Grand Chamber. Articles 2 and 3 of the ECHR entail an obligation on the part of Council of Europe member states not to return a person to his/her country of origin, any other country to which removal is to be effected or any other country to which he/she may subsequently be removed, where there are substantial grounds for believing that the person would run a real risk to his/her life or a real risk of being subjected to torture and other forms of ill-treatment. On the basis of the principle of non- refoulement enshrined in Article 33 of the 1951 Geneva Convention on the Status of Refugees and the relevant jurisprudence of the European Court of Human Rights, states are obliged to screen intercepted migrants with a view to identifying persons in need of protection, assessing those needs and enabling the relevant persons’ access to asylum procedures. While the Spanish Law on Aliens contains a general guarantee that the returns described above will be carried out in compliance with international human rights standards, in practice the Guardia Civil does not yet have a protocol on screening foreigners who irregularly cross the borders in Melilla and Ceuta which would provide instructions to its officers on identifying persons in need of international protection and taking necessary action regarding their access to a fair and efficient asylum procedure. As international bodies, including the Commissioner for Human Rights, the CPT and the UNHCR, have called for the issuance of such instructions for some years it is now necessary that Spain takes action. The Council of Europe can provide its human rights expertise to ensure that the relevant instructions provide for the respect of the principle of non- refoulement, prohibit collective expulsion and contain the necessary procedural guarantees regarding access to a fair and effective asylum procedure. 4. ACCESS TO THE ASYLUM PROCEDURE Anyone who wishes to seek international protection in Spain must lodge a formal application with the competent authorities. In cases when the asylum seeker is at an airport, maritime port or land borders he/she must lodge a formal application with the border control authority. If the person is already on Spanish territory he/she must lodge a formal application with the OAR, in Detention Centres for Foreigners ( Centro de Internamiento de Extranjeros, CIEs)or police stations. The admissibility and merits of applications lodged at the borders and in CIEs are assessed within shorter periods of time compared to applications lodged in Spanish territory, which are examined under the regular procedure. However, procedural safeguards for applications lodged at the border or in CIEs concerning the presence of interpreters and legal assistance are the same as those applicable under the regular procedure. 4.1. At the land border At the Beni Enzar border-crossing point in Melilla we were informed that the persons who crossed the border in a regular manner in order to seek asylum are mostly Syrians, Palestinians, Algerians or nationals of other Northern African countries. They are given an appointment for a preliminary interview by Ministry of Interior officials within two or three days, but no later than nine days, from the time they express their intention to seek asylum. The registration of asylum applications and a preliminary interview takes place in dedicated premises adjacent to Beni Enzar. At the time of our visit there had been around 700 asylum requests for 2018. The OAR in Madrid usually makes a decision on the admissibility of the applications within 48 hours of the registration of the application. The admissibility rate is rather high at 90%. After a decision on admissibility the merits of the asylum application is examined with priority within three months under the regular asylum procedure (see section 4.3. below). At the El Trajal border-crossing point in Ceuta we were informed by the Spanish authorities that no single asylum application had been lodged since 1993. A number of reports have underlined that persons from sub-Saharan Africa are effectively prevented by Moroccan authorities from approaching regular border crossing points, notably in Melilla (see section 3.1. above). Consequently, they do not have access to the asylum procedure. Spanish authorities explained that one of the possible reasons why sub-Saharan Africans cannot approach the border are the sizeable daily flows of persons involved in the so-called ‘atypical trade’ who cross the border daily into and out of Melilla. While I understand the difficulties that the Spanish authorities encounter in managing such flows I was not convinced that they affect the ability of sub-Saharan Africans to approach the Spanish border. Without any possibility for legal and safe access to the Spanish territory, persons from sub ‑ Saharan Africa, including women and young children, turn to organised crime networks, hiding in cars or embarking on rafts to gain access to the autonomous cities of Melilla and Ceuta, thereby exposing themselves to risks of trafficking in human beings, violence and sexual abuse. It is, therefore, important that the Spanish authorities provide to persons in need of international protection the possibility to access the Spanish territory safely so that they can submit their asylum claims ...” E. Resolution 2299 (2019) of the Parliamentary Assembly of the Council of Europe, adopted on 28 June 2019: Pushback policies and practice in Council of Europe member States 59. The relevant parts of this report read as follows: “1. To control and manage migration flows, Council of Europe member States concentrate much of their efforts on guarding frontiers. In this context, refusals of entry and expulsions without any individual assessment of protection needs have become a documented phenomenon at Europe’s borders, as well as on the territory of member States further inland. As these practices are widespread, and in some countries systematic, these “pushbacks” can be considered as part of national policies rather than incidental actions. The highest risk attached to pushbacks is the risk of refoulement, meaning that a person is sent back to a place where they might face persecution in the sense of the 1951 United Nations Convention Relating to the Status of Refugees (“the Refugee Convention”), or inhuman or degrading treatment in the sense of the European Convention on Human Rights (ETS No. 5, “the Convention”). 2. This is why the European Court of Human Rights, for instance in its judgment Hirsi Jamaa and Others v. Italy (Application No. 27765/09), but also in N.D. and N.T. v. Spain (Applications Nos. 8675/15 and 8697/15), requires the individual assessment of protection needs and of the safety of a return in order to prevent violation of Article 3 of the European Convention on Human Rights and of the prohibition of collective expulsions, as enshrined in Article 4 of Protocol No. 4 to the Convention (ETS No. 46). Pushbacks take place in particular at European Union borders, which is at least in part a consequence of the shortcomings of the current Dublin Regulation and of the failure of attempts to introduce fair responsibility-sharing in Europe. 3. Pushbacks often take place where migrants attempt to enter the territory of a member State in large numbers because the passage is, or appears to be, more “open” than elsewhere, or is geographically close to the countries of origin of asylum seekers. However, recent evidence of pushbacks shows that they also take place where numbers of arrivals are low, but where national policies are hostile towards migration in general. There are also cases of “multiple pushbacks” where migrants are expelled by various countries successively. 4. The Parliamentary Assembly is concerned about the persistent and increasing practice and policies of pushbacks, which are in clear violation of the rights of asylum seekers and refugees, including the right to asylum and the right to protection against refoulement, which are at the core of international refugee and human rights law. In view of the gravity of the human rights violations involved, the Assembly urges member States to provide adequate protection to asylum seekers, refugees and migrants arriving at their borders, and thus to refrain from any pushbacks, to allow for independent monitoring and to fully investigate all allegations of pushbacks. 5. The Assembly is extremely worried about persistent reports and evidence of inhuman and degrading treatment of migrants by member States and their agencies in the framework of these pushbacks, through intimidation, confiscating or destroying migrants’ belongings, and even through the use of violence and by depriving migrants of food and basic services. In denying having carried out such pushbacks, these types of (sometimes systematic) inhuman and degrading treatment are denied as well, and are therefore not adequately examined or not examined at all. 6. The Assembly therefore calls on Council of Europe member States to comply with their international obligations in this regard, in particular those set out in the European Convention on Human Rights concerning the prohibition of collective expulsion and inhuman and degrading treatment, as well as the right of access to asylum procedures and the prohibition of refoulement as established in the United Nations Refugee Convention. ...” IV. OTHER INTERNATIONAL MATERIALS A. Charter of the United Nations (UN Charter), signed on 26 June 1945 in San Francisco 60. The relevant provision of this international instrument reads as follows: Article 51 “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” B. Vienna Convention on the Law of Treaties of 23 May 1969 61. The relevant provisions of the Vienna Convention read as follows: Article 27 - Internal law and observance of treaties “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.” Article 31 - General rule of interpretation “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: ( a ) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; ( b ) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: ( a ) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; ( b ) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; ( c ) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” Article 32 - Supplementary means of interpretation “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: ( a ) leaves the meaning ambiguous or obscure; or ( b ) leads to a result which is manifestly absurd or unreasonable.” C. Geneva Convention of 28 July 1951 relating to the Status of Refugees 62. The relevant provisions of the 1951 Geneva Convention read as follows: Article 1 - Definition of the term ‘refugee’ “A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who: (1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization; ... (2) As a result of events occurring before 1 January 1951 and owing to well ‑ founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. ...” Article 3 – Non-discrimination “The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.” Article 4 – Religion “The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children.” Article 16 – Access to courts “1. A refugee shall have free access to the courts of law on the territory of all Contracting States. 2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi. 3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.” Article 22 – Public education “1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education. 2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.” Article 31 – Refugees unlawfully in the country of refugee “1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.” Article 32 – Expulsion “1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.” Article 33 – Prohibition of expulsion or return (‘refoulement’) 1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” D. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (UNCAT) 63. The relevant provision of this international instrument reads as follows: Article 3 “1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” E. Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967 (Resolution 2312 (XXII)) 64. The relevant parts of the declaration provide: Article 1 “1. Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke article 14 of the Universal Declaration of Human Rights ... shall be respected by all other States. ...” Article 3 “1. No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution. ...” F. International Law Commission’s Draft Articles on the Expulsion of Aliens 65. At its sixty-sixth session, in 2014, the International Law Commission adopted a set of Draft Articles on the Expulsion of Aliens. The text, of which the United Nations General Assembly took note (Resolution A/RES/69/119 of 10 December 2014), includes the following provisions: Article 1 – Scope “1. The present draft articles apply to the expulsion by a State of aliens present in its territory. ...” Commentary “... (2) In stating that the draft articles apply to the expulsion by a State of aliens who are present in its territory, paragraph 1 defines the scope of the draft articles both ratione materiae and ratione personae. With regard to scope ratione materiae, which relates to the measures covered by the draft articles, reference is made simply to the ‘expulsion by a State’, which covers any and all expulsion measures; no further elaboration is provided, since ‘expulsion’ is defined in draft article 2, subparagraph (a), below. With regard to scope ratione personae, that is, the persons covered by the draft articles, it follows from paragraph 1 that the draft articles apply in general to the expulsion of all aliens present in the territory of the expelling State, with no distinction between the various categories of persons involved, for example, aliens lawfully present in the territory of the expelling State, aliens unlawfully present, displaced persons, asylum seekers, persons granted asylum and stateless persons. The term ‘ alien’ is defined in draft article 2, subparagraph (b). (3) The draft articles cover the expulsion of both aliens lawfully present and those unlawfully present in the territory of the expelling State, as paragraph 1 of the draft article indicates. The category of aliens unlawfully present in the territory of the expelling State covers both aliens who have entered the territory unlawfully and aliens whose presence in the territory has subsequently become unlawful, primarily because of a violation of the laws of the expelling State governing conditions of stay. Although the draft articles apply in general to the expulsion of aliens present lawfully or unlawfully in the territory of the expelling State, it should be noted at the outset that some provisions of the draft articles draw necessary distinctions between the two categories of aliens, particularly with respect to the rights to which they are entitled. It should be also noted that the inclusion within the scope of the draft articles of aliens whose presence in the territory of the expelling State is unlawful is to be understood in conjunction with the phrase in article 2, subparagraph (a), in fine, which excludes from the scope of the draft articles questions concerning non-admission of an alien to the territory of a State.” Article 2 – Use of terms “For the purposes of the present draft articles: (a) ’expulsion’ means a formal act or conduct attributable to a State by which an alien is compelled to leave the territory of that State; it does not include extradition to another State, surrender to an international criminal court or tribunal, or the non ‑ admission of an alien to a State; (b) ’alien’ means an individual who does not have the nationality of the State in whose territory that individual is present.” Commentary “(1) Draft article 2 defines two key terms, ‘expulsion’ and ‘alien’, for the purposes of the present draft articles. ... (4) Conduct – other than the adoption of a formal decision – that could result in expulsion may take the form of either an action or an omission on the part of the State. Omission might in particular consist of tolerance towards conduct directed against the alien by individuals or private entities, for example, if the State failed to appropriately protect an alien from hostile acts emanating from non-State actors. What appears to be the determining element in the definition of expulsion is that, as a result of either a formal act or conduct – active or passive – attributable to the State, the alien in question is compelled to leave the territory of that State. In addition, in order to conclude that there has been expulsion as a result of conduct (that is, without the adoption of a formal decision), it is essential to establish the intention of the State in question, by means of that conduct, to bring about the departure of the alien from its territory. (5) For the sake of clarity, the Commission thought it useful to specify, in the second clause of subparagraph (a), that the concept of expulsion within the meaning of the draft articles did not cover extradition of an alien to another State, surrender to an international criminal court or tribunal or the non-admission of an alien to a State. With respect to non-admission, it should be explained that, in some legal regimes, the term ‘return ( refoulement )’ is sometimes used instead of ‘non-admission’. For the sake of consistency, the present draft articles use the latter term in cases where an alien is refused entry. The exclusion relates to the refusal by the authorities of a State – usually the authorities responsible for immigration and border control – to allow an alien to enter the territory of that State. On the other hand, the measures taken by a State to compel an alien already present in its territory, even if unlawfully present, to leave it are covered by the concept of ‘expulsion’ as defined in draft article 2, subparagraph (a). This distinction should be understood in the light of the definition of the scope ratione personae of the draft articles, which includes both aliens lawfully present in the territory of the expelling State and those unlawfully present. Moreover the exclusion of matters relating to non-admission from the scope of the draft articles is without prejudice to the rules of international law relating to refugees. That reservation is explained by draft article 6, subparagraph (b), which references the prohibition against return ( refoulement ) within the meaning of article 33 of the Convention on the Status of Refugees of 28 July 1951 and hence inevitably touches on questions of admission. ...” Article 3 – Right of expulsion “A State has the right to expel an alien from its territory. Expulsion shall be in accordance with the present draft articles, without prejudice to other applicable rules of international law, in particular those relating to human rights.” Article 6 – Prohibition of the expulsion of refugees “The present draft articles are without prejudice to the rules of international law relating to refugees, as well as to any more favourable rules or practice on refugee protection, and in particular to the following rules: (a) a State shall not expel a refugee lawfully in its territory save on grounds of national security or public order; (b) a State shall not expel or return ( refouler ) a refugee in any manner whatsoever to the frontiers of territories where the person’s life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion, unless there are reasonable grounds for regarding the person as a danger to the security of the country in which he or she is, or if the person, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.” Commentary “(1) Draft article 6 deals with the expulsion of refugees, which is subject to restrictive conditions by virtue of the relevant rules of international law. It contains a ‘without prejudice’ clause aimed at ensuring the continued application to refugees of the rules concerning their expulsion, as well as of any more favourable rules or practice on refugee protection. In particular, subparagraphs (a) and (b) of draft article 6 recall two particularly important rules concerning the expulsion or return ( refoulement ) of refugees. ... (5) Draft article 6, subparagraph (a), reproduces the wording of article 32, paragraph 1, of the Convention relating to the Status of Refugees of 28 July 1951. The rule contained in that paragraph, which applies only to refugees lawfully in the territory of the expelling State, limits the grounds for expulsion of such refugees to those relating to reasons of national security or public order. (6) The prohibition of expulsion of a refugee lawfully in the territory of the expelling State for any grounds other than national security or public order has also been extended to any refugee who, being unlawfully in the territory of the State, has applied for refugee status, as long as this application is under consideration. However, such protection can be envisaged only for so long as the application is pending. This protection, which reflects a trend in the legal literature and finds support in the practice of some States and of UNHCR, would constitute a departure from the principle whereby the unlawfulness of the presence of an alien in the territory of a State can in itself justify expulsion of the alien. The protection might be set aside only in cases where the manifest intent of the application for refugee status was to thwart an expulsion decision likely to be handed down against the individual concerned. It concerns only individuals who, while not enjoying the status of refugee in the State in question, did meet the definition of ‘refugee’ within the meaning of the 1951 Convention or, in some cases, other relevant instruments, such as the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, and should therefore be regarded as refugees under international law. Any individual who does not correspond to the definition of refugee within the meaning of the relevant legal instruments is ineligible to enjoy the protection recognized in draft article 6 and can be expelled on grounds other than those stipulated in subparagraph (a), including on the sole ground of the unlawfulness of his or her presence in the territory of the expelling State. In any event, article 6 is without prejudice to the right of a State to expel, for reasons other than those mentioned in subparagraph (a), an alien whose application for refugee status is manifestly abusive. (7) Draft article 6, subparagraph (b), which concerns the obligation of non ‑ refoulement, combines paragraphs 1 and 2 of article 33 of the 1951 Convention. Unlike the other provisions of the draft articles, which do not cover the situation of non-admission of an alien to the territory of a State, draft article 6, subparagraph (b), provides that these draft articles are without prejudice to that situation as well, as indicated by the opening phrase: ‘A State shall not expel or return ( refouler ) ...’. Moreover, unlike the protection stipulated in subparagraph (a), the protection mentioned in subparagraph (b) applies to all refugees, regardless of whether their presence in the receiving State is lawful or unlawful. It should also be emphasized that the mention of this specific obligation of non-refoulement of refugees is without prejudice to the application to them of the general rules prohibiting expulsion to certain States as contained in draft articles 23 and 24.” Article 9 – Prohibition of collective expulsion “1. For the purposes of the present draft article, collective expulsion means expulsion of aliens, as a group. 2. The collective expulsion of aliens is prohibited. 3. A State may expel concomitantly the members of a group of aliens, provided that the expulsion takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles. 4. The present draft article is without prejudice to the rules of international law applicable to the expulsion of aliens in the event of an armed conflict involving the expelling State.” Commentary “(1) Paragraph 1 of draft article 9 contains a definition of collective expulsion for the purposes of the present draft articles. According to this definition, collective expulsion is understood to mean the expulsion of aliens ‘as a group’. This criterion is informed by the case-law of the European Court of Human Rights. It is a criterion that the Special Rapporteur on the rights of non-citizens of the Commission on Human Rights, Mr. David Weissbrodt, had also endorsed in his final report of 2003. Only the ‘collective’ aspect is addressed in this definition, which must be understood in the light of the general definition of expulsion contained in draft article 2, subparagraph (a). ... (4) The prohibition of the collective expulsion of aliens set out in paragraph 2 of the present draft article should be read in the light of paragraph 3, which elucidates it by specifying the conditions under which the members of a group of aliens may be expelled concomitantly without such a measure being regarded as a collective expulsion within the meaning of the draft articles. Paragraph 3 states that such an expulsion is permissible provided that it takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles. ...” Article 13 – Obligation to respect the human dignity and human rights of aliens subject to expulsion “1. All aliens subject to expulsion shall be treated with humanity and with respect for the inherent dignity of the human person at all stages of the expulsion process. 2. They are entitled to respect for their human rights, including those set out in the present draft articles.” Article 17 – Prohibition of torture or cruel, inhuman or degrading treatment or punishment “The expelling State shall not subject an alien subject to expulsion to torture or to cruel, inhuman or degrading treatment or punishment.” 66. In his second report on the expulsion of aliens, dated 20 July 2006 (Document A/CN.4/573), examined in connection with the writing of the Draft Articles, Mr Maurice Kamto, Special Rapporteur, stated as follows: “40. ... The traditional notion of expulsion ... concerns aliens whose entry or stay are lawful, whereas non-admission concerns those whose entry into or stay on its territory a State seeks to prevent; removal of an illegal immigrant who is at the border or has just crossed it is strictly speaking non-admission, not expulsion. It is by virtue of this judicious distinction that non-admission does not, in the opinion of the Special Rapporteur, fall within the scope of this topic. ... 170. As can be seen, no real terminological distinction can be drawn among the three terms ‘expulsion’, ‘escort to the border’ and ‘refoulement’; they are used inter ‑ changeably, without any particular semantic rigour. The word ‘expulsion’ will consequently be used in the context of the present topic as a generic term to mean all situa tions covered by all three terms and many others, such as ‘return of an alien to a country’ or ‘exclusion of an alien’, this list not being exhaustive.” G. Conclusions on International Protection adopted by the Executive Committee of the UNHCR Programme 1975 – 2017 67. The relevant conclusions provide as follows: No. 6 (XXVIII), Non-refoulement (1977) – 28th Session of the Executive Committee “The Executive Committee, ... (c) Reaffirms the fundamental importance of the observance of the principle of non ‑ refoulement – both at the border and within the territory of a State – of persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognized as refugees.” No. 22 (XXXII), Protection of asylum-seekers in situations of large-scale influx (1981) – 32nd Session of the Executive Committee “... II. Measures of protection A. Admission and non-refoulement 1. In situations of large-scale influx, asylum-seekers should be admitted to the State in which they first seek refuge and if that State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection according to the principles set out below. ... 2. In all cases the fundamental principle of non-refoulement – including non ‑ rejection at the frontier – must be scrupulously observed. ...” No. 82 (XLVIII), Safeguarding asylum (1997) – 48th Session of the Executive Committee “The Executive Committee, ... (d) Reiterates ... the need for full respect to be accorded to the institution of asylum in general, and considers it timely to draw attention to the following particular aspects: (i) the principle of non-refoulement, which prohibits expulsion and return of refugees in any manner whatsoever to the frontiers of territories where their lives or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion, whether or not they have been formally granted refugee status, or of persons in respect of whom there are substantial grounds for believing that they would be in danger of being subjected to torture, as set forth in the 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; ... (iii) the need to admit refugees into the territories of States, which includes no rejection at frontiers without fair and effective procedures for determining status and protection needs; ...” No. 99 (LV) General conclusion (2004)1 – 55th Session of the Executive Committee “The Executive Committee, ... (l) Expresses concern at the persecution, generalized violence and violations of human rights which continue to cause and perpetuate displacement within and beyond national borders and which increase the challenges faced by States in effecting durable solutions; and calls on States to address these challenges while ensuring full respect for the fundamental principle of non-refoulement, including non-rejection at frontiers without access to fair and effective procedures for determining status and protection needs; ...” H. Views adopted by the Committee on the Rights of the Child on 12 February 2019 under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 4/2016 68. The relevant parts of these views read as follows: “...The facts as submitted by the complainant 2.4. On 2 December 2014, the author and a group of people of sub-Saharan origin left Mount Gurugu with the intention of entering Melilla. The author reached the top of the third fence and saw that other people climbing down the fence on the other side were being summarily pushed back by the Spanish Civil Guard and handed over to Moroccan forces. Then, for fear of being deported and subjected to possible ill ‑ treatment and violence by Moroccan forces, the author waited for several hours at the top of the fence. During this period, he was not offered any form of assistance. He had no access to water or food. He was also unable to communicate with the Civil Guard, since he did not speak Spanish and there were no interpreters present. Finally, he climbed down the fence with the help of a ladder provided by the Civil Guard. As soon as he set foot on the ground, he was arrested and handcuffed by the Civil Guard, handed over to the Moroccan forces and summarily deported to Morocco. At no time was his identity checked. He was also denied the opportunity to explain his personal circumstances, give his age, challenge his imminent deportation or claim protection as an unaccompanied child. He was not assisted by lawyers, interpreters or doctors... 2.5. The author submits that there were no effective domestic remedies available to him that could have served to suspend his deportation from Spain to Morocco on 2 December 2014. He points out that the deportation was summarily executed without him being notified of a formal expulsion decision that he could have challenged before the competent authorities. 2.6. On or around about 30 December 2014, the author entered Spain through Melilla and went to stay in the temporary reception centre for migrants. In February 2015, he was transferred from the enclave of Melilla to mainland Spain. At the end of July 2015, thanks to the assistance of Fundación Raíces, a non ‑ governmental organization (NGO), and the consular registration card issued to him by the Malian consulate in Madrid, which showed his date of birth as 10 March 1999, the author obtained protection as an unaccompanied child and was placed in a residential centre for minors under the care of the Spanish authorities. 2.7. The author states that, on 30 March 2015, Spain adopted Organic Act No. 4/2015 on safeguarding the security of citizens, which entered into force on 1 April 2015. This law, and in particular its tenth additional provision concerning the special regime applicable in Ceuta and Melilla, legalizes the Spanish practice of indiscriminate summary deportations at the border and makes no reference to unaccompanied minors nor establishes any procedure for their identification and protection. ... Issues and proceedings before the Committee Consideration of admissibility ... 13.3. As to the mismatches between the details of the person registered by the Spanish authorities and those of the author, the Committee notes that the file provides no conclusive evidence that shows that the author is not the person who attempted to gain access to Melilla on 2 December 2014 in the circumstances described. The Committee considers that the burden of proof cannot rest solely on the author of the communication, especially given that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information. In the present case, the Committee considers that the author has provided a credible and consistent account of the facts, which is supported by evidence. The Committee also notes the author’s allegations that the State party could have compared the fingerprints of the person registered as Y.D. with those of the author. The Committee therefore finds the present communication admissible rationae personae. 13.4. The Committee takes note of the State party’s argument that the communication is inadmissible rationae loci because the actions of the Moroccan authorities are not attributable to Spain. The Committee notes, however, that the scope of the present communication is limited to the actions of the Spanish authorities on 2 December 2014, to the exclusion of those of the Moroccan authorities. In this regard, the Committee notes that, according to the author, he was arrested by Spanish security forces at the third fence of the Melilla border crossing and was handcuffed and returned to Moroccan territory. Given these circumstances, and irrespective of whether or not the author is considered to have arrived in Spanish territory, he was under the authority or effective control of the State party. The Committee therefore finds the present communication admissible rationae loci. 13.5. The Committee also notes the State party’s argument that the communication is inadmissible rationae materiae because it refers to the author’s right to asylum, which is not covered by the Convention. The Committee notes, however, that the present communication concerns alleged violations of the author’s rights under articles 3, 20 and 37 of the Convention and not his right to asylum. The Committee therefore finds that the communication is admissible rationae materiae. 13.6. Lastly, the Committee notes the State party’s argument that the complainant did not exhaust available domestic remedies ... The Committee also notes that it can be gleaned from the case file that on 2 December 2014 no formal expulsion order against the author had been issued. Accordingly, the Committee considers that, in the context of the author’s imminent expulsion on 2 December 2014, and in the absence of a formal expulsion order that could have been challenged by the author, the judicial remedies mentioned in point (d) of the State party’s argument would have been worthless, as they were neither available nor effective. ... 13.7. ... The Committee therefore finds the complaint admissible and proceeds to consider it on the merits. Consideration of the merits ... 14.2. The issue before the Committee is whether, in the circumstances of this case, the author’s return to Morocco by the Spanish Civil Guard on 2 December 2014 violated his rights under the Convention. In particular, the author claimed that, by summarily deporting him to Morocco on 2 December 2014, without performing any form of identity check or assessment of his situation, the State party: (a) failed to provide the author with the special protection and assistance to which he was entitled as an unaccompanied minor (art. 20); (b) failed to respect the principle of non ‑ refoulement and exposed the author to the risk of violence and cruel, inhuman and degrading treatment in Morocco (art. 37); and (c) failed to consider the best interests of the child (art. 3). 14.3. The Committee is of the view that the State’s obligations to provide special protection and assistance to unaccompanied children, in accordance with article 20 of the Convention, apply even ‘with respect to those children who come under the State’s jurisdiction when attempting to enter the country’s territory’. Similarly, the Committee considers that ‘the positive aspect of these protection obligations also extends to requiring States to take all necessary measures to identify children as being unaccompanied or separated at the earliest possible stage, including at the border’. Accordingly, it is imperative and necessary that, in order to comply with its obligations under article 20 of the Convention and to respect the best interests of the child, the State conducts an initial assessment, prior to any removal or return, that includes the following stages: (a) assessment, as a matter of priority, of whether the person concerned is an unaccompanied minor, with, in the event of uncertainty, the individual being accorded the benefit of the doubt such that, if there is a possibility that the individual is a child, he or she is treated as such; (b) verification of the child’s identity by means of an initial interview; and (c) assessment of the child’s specific situation and particular vulnerabilities, if any. 14.4. The Committee is also of the view that, in compliance with its obligations under article 37 of the Convention, in order to ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment, the State should not return a child ‘to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child’. The Committee therefore considers that, in accordance with article 37 of the Convention and the principle of non-refoulement, the State has an obligation to carry out a prior assessment of the risk, if any, of irreparable harm to the child and serious violations of his or her rights in the country to which he or she will be transferred or returned, taking into account the best interests of the child, including, for example, ‘the particularly serious consequences for children of the insufficient provision of food or health services’. In particular, the Committee recalls that, in the context of best interest assessments and within best interest determination procedures, children should be guaranteed the right to: (a) access the territory, regardless of the documentation they have or lack, and be referred to the authorities in charge of evaluating their needs in terms of protection of their rights, ensuring their procedural safeguards. ... 14.6. The Committee also notes the State party’s allegation that the principle of non-refoulement does not apply in the present case because it only applies when the person comes from a territory where there is a risk of persecution. However, the Committee reiterates that the State party has an obligation not to return a child ‘to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child’. The Committee also notes that, before returning the author to Morocco, the State party did not ascertain his identity, did not ask about his personal circumstances and did not conduct a prior assessment of the risk, if any, of persecution and/or irreparable harm in the country to which he was to be returned. The Committee considers that, given the violence faced by migrants in the Moroccan border area and the ill-treatment to which the author was subjected, the failure to assess the risk of irreparable harm to the author prior to his deportation or to take into account his best interests constitutes a violation of articles 3 and 37 of the Convention. 14.7. The Committee considers that, in the light of the circumstances of the case, the fact that the author, as an unaccompanied child, did not undergo an identity check and assessment of his situation prior to his deportation and was not given an opportunity to challenge his potential deportation violates his rights under articles 3 and 20 of the Convention. 14.8. Lastly, the Committee considers that the manner in which the author was deported, as an unaccompanied child deprived of his family environment and in a context of international migration, after having been detained and handcuffed and without having been heard, without receiving the assistance of a lawyer or interpreter and without regard to his needs, constitutes treatment prohibited under article 37 of the Convention. 14.9. The Committee, acting under article 10 (5) of the Optional Protocol, is of the view that the facts before it amount to a violation of articles 3, 20 and 37 of the Convention. ...” THE LAW I. PRELIMINARY ISSUES A. Continued examination of the case – Article 37 § 1 (a) 69. In their observations before the Grand Chamber in reply to a written question to the parties concerning the maintenance of contact between the applicants and their representatives, the latter stated that both applicants were living in precarious circumstances and had no fixed address. The first applicant was reportedly in Mali and was moving from one place to another within the country. The second applicant was apparently moving around within Spain. One of the applicants’ representatives stated that he remained in contact with both applicants, through his legal assistant, by telephone and WhatsApp. With the help of Bambara interpreters, he and his assistant received updates from the applicants and had informed them of developments concerning the Chamber judgment and of the referral of their case to the Grand Chamber. The applicants had retained an interest in the case. 70. For their part, the Government made no reference, either in the Chamber proceedings or in their written observations before the Grand Chamber, to the issue of continued examination of the case by the Court. In a letter received by the Court on 25 April 2018 they complained of a lack of information from the applicants’ representatives in that regard, but did not request the striking-out of the case on that ground, although they referred at the hearing to the judgment in V.M. and Others v. Belgium (striking out) ([GC], no. 60125/11, 17 November 2016) concerning the lack of an address and contact details for the applicants. 71. In view of these circumstances, the Court considers it necessary first to examine the need to continue the examination of the application in the light of the criteria set forth in Article 37 of the Convention. That provision reads as follows: “1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. ...” 72. The Court observes that in the case of V.M. and Others v. Belgium (cited above), it examined the need to continue the examination of the case with reference to the criteria set forth in Article 37 of the Convention. It specified, in the light of Article 37 § 1 (a), that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court), but that it was also important that contact between the applicant and his or her representative be maintained throughout the proceedings, both in order to learn more about the applicant’s particular circumstances and to confirm the applicant’s continuing interest in pursuing the examination of his or her application (see also Sharifi and Others v. Italy and Greece, no. 16643/09, §§ 124-34, 21 October 2014). 73. The Court notes that in some cases in which the applicant’s representative had lost touch with his or her client, including in cases concerning the expulsion of aliens, it found that such a situation might warrant striking the application out of the list under Article 37 § 1. The lack of contact was sometimes taken as an indication that the applicant no longer wished to pursue the application within the meaning of Article 37 § 1 (a) (see Ibrahim Hayd v. the Netherlands (dec.), no. 30880/10, 29 November 2011, and Kadzoev v. Bulgaria (dec.), no. 56437/07, § 7, 1 October 2013) or that examination of the application was no longer justified because the representative could not “meaningfully” pursue the proceedings before it in the absence of instructions from the applicant, despite the fact that the lawyer had authority to continue with the proceedings (see Ali v. Switzerland, 5 August 1998, §§ 30-33, Reports of Judgments and Decisions 1998-V, and Ramzy v. the Netherlands (striking out), no. 25424/05, §§ 64-66, 20 July 2010). In some cases, the Court’s findings combined these two reasons (see M.H. v. Cyprus (dec.), no. 41744/10, § 14, 14 January 2014, and M.Is. v. Cyprus (dec.), no. 41805/10, § 20, 10 February 2015). In Sharifi and Others (cited above), the Court struck the application out of its list with regard to some of the applicants in respect of whom the information provided by the lawyer was vague and superficial and insufficiently substantiated (§§ 127-29 and 131-34). 74. The Court notes that in the present case the Government did not request that the case be struck out of the list for this reason. It observes that the applicants’ representatives stated that they remained in touch with the applicants, who could be contacted by telephone and WhatsApp. Furthermore, one of the lawyers read out at the hearing an extract from a conversation he had reportedly had with the first applicant, in which the latter had told him that he “could still not accept that human beings could treat other human beings like that”, that he had suffered harm when his rights had been breached by Spain, and that he wanted to see “steps taken so that other people did not suffer the same harm”. The Court also notes that the powers of attorney included in the case file are signed and bear fingerprints. In the Court’s view, there is nothing in the case file that could call into question the lawyers’ account or the exchange of information with the Court (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 54, ECHR 2012). 75. That being said, the Court observes that, even if the circumstances of a case lead to the conclusion that an applicant no longer wishes to pursue the application, it may continue its examination “if respect for human rights as defined in the Convention and the Protocols thereto so requires” (Article 37 § 1 in fine ). In the cases cited at paragraph 73 above the Court considered that there were no special circumstances regarding respect for human rights as defined in the Convention and the Protocols thereto requiring it to continue the examination of the application (Article 37 § 1 in fine ). 76. By contrast, in the Grand Chamber judgment in the case of F.G. v. Sweden ([GC], no. 43611/11, §§ 81-82, ECHR 2016), the Court considered that the circumstances of the case justified striking the case out of its list under Article 37 § 1 (c) since there was no longer a risk that the expulsion order would be enforced. It nevertheless decided to continue its examination of the application for the following reasons: “81. It will be recalled that on 2 June 2014 the case was referred to the Grand Chamber in accordance with Article 43 of the Convention ... 82. The Court notes that there are important issues involved in the present case, notably concerning the duties to be observed by the parties in asylum proceedings. Thus, the impact of the current case goes beyond the particular situation of the applicant, unlike most of the similar cases on expulsion decided by a Chamber.” 77. The Court reached a similar conclusion in its Grand Chamber judgment in Paposhvili v. Belgium ([GC], no. 41738/10, 13 December 2016). In that case it found that there were important issues at stake, notably concerning the interpretation of the case-law on the expulsion of aliens who were seriously ill. It therefore considered that the impact of the case went beyond the applicant’s particular situation (§§ 132 and 133). 78. The Court observes that the present case was referred to the Grand Chamber in accordance with Article 43 of the Convention, which provides that a case can be referred if it raises “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance”. It notes that important issues are also at stake in the present case, particularly concerning the interpretation of the scope and requirements of Article 4 of Protocol No. 4 with regard to migrants who attempt to enter a Contracting State in an unauthorised manner by taking advantage of their large numbers. This is especially important in the context of the “new challenges” facing European States in terms of immigration control as a result of the economic crisis and recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East (see Khlaifia and Others, cited above, § 241). The participation of numerous third parties, both governments and NGOs (see paragraph 12 above), testifies to the public’s interest in the case. Thus, the impact of this case goes beyond the particular situation of the applicants (see F.G. v. Sweden, cited above, § 82). 79. In view of the foregoing, the Court reiterates that there is no reason to cast doubt on the credibility of the information provided by the applicants’ representatives as to the truth of their contact with the applicants (see paragraph 74 above). In any event, the Court considers that special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto require it to continue the examination of the application in accordance with Article 37 § 1 in fine of the Convention. B. Assessment of the evidence and establishment of the facts by the Court 80. The Government submitted that the applicants had not demonstrated that they had taken part in the attempt to enter Spain at the Melilla border at daybreak on 13 August 2014. They noted the applicants’ claim to recognise themselves on the video-footage which they provided (see paragraph 27 above). Basing their assertions on expert assessments, the Government criticised the poor quality of the video-recordings in question, which in their view made it impossible to compare the footage with the photographs in the official identity archives, which had been checked when the applicants had entered Spanish territory subsequently. The applicants had not provided proof of their participation in the storming of the fences, although the burden of proof lay with them. In any event, on the basis of the images provided by the applicants and in view of the injuries and fractures they claimed to have sustained prior to their attempted entry, the first applicant would have been unable to climb over the three fences and the second applicant, who had allegedly had a painful knee, could not be the person shown on the video-footage provided, who appeared to have a problem with his heel and a broken arm. The Government contested the Chamber judgment in that regard and argued, relying on Article 34 of the Convention, that the applications should be declared inadmissible for lack of victim status. 81. The applicants, meanwhile, submitted that the evidence they had gathered – videos of the storming of the fences in which they claimed to recognise themselves among the other migrants, and reports by independent international institutions and organisations – was sufficient to demonstrate that they had indeed been part of the group that had attempted to enter Spain by scaling the fence at Melilla on 13 August 2014 in large numbers, and that they had been summarily returned to Morocco. The Spanish Government had already acknowledged the existence of a systematic practice of collective summary expulsions at the Melilla border fence. The applicants called into question the independence and quality of the reports submitted by the Government, arguing that no “comparison” was possible since the photographs from the official identity archives used by the Government were not the relevant images. They criticised the Government for not producing the video-recordings made by the infrared security cameras and movement sensors installed at the Melilla fence. In the applicants’ submission, those images would have been clearer than the ones which they had themselves produced (see paragraph 27 above) and which had been taken by third parties (journalists and other eyewitnesses) despite the threats issued by the Guardia Civil officials in an attempt to prevent them from filming. 82. The applicants observed that it was of the utmost importance for the effective operation of the system of individual petition that States should furnish all necessary facilities to make possible a proper and effective examination of applications (they referred to Timurtaş v. Turkey, no. 23531/94, § 66, ECHR 2000-VI). They also observed that in its judgment in Hirsi Jamaa and Others (cited above), the Court had attached particular weight to the applicants’ version because it was corroborated by a large number of witness statements gathered by UNHCR, the CPT and Human Rights Watch (§ 203), as in the present case (see, by way of example, paragraphs 55 et seq. above concerning the reports of the Commissioner for Human Rights, the CPT and the Special Representative of the Secretary General of the Council of Europe on migration and refugees). They argued that their inability to provide additional evidence of their participation in the storming of the fences on 13 August 2014 was the result of the Spanish government’s failure to comply with the procedures for identifying persons and assessing their individual circumstances as required by Article 4 of Protocol No. 4. 83. In the light of the parties’ submissions the Court will now examine the Government’s objection that the applicants lack victim status as a preliminary issue concerning the establishment of the facts. 84. In this regard the Court observes significant differences in the parties’ accounts of the facts. The question is therefore whether the Grand Chamber is persuaded of the truthfulness of the applicants’ statements regarding their participation in the storming of the fences on 13 August 2014, notwithstanding the fact that the evidence adduced by them does not appear conclusive. 85. According to the Court’s case-law, the distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among other authorities, El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 151). In this context it must be borne in mind that the absence of identification and personalised treatment by the authorities of the respondent State in the present case, which has contributed to the difficulty experienced by the applicants in adducing evidence of their involvement in the events in issue, is at the very core of the applicants’ complaint. Accordingly, the Court will seek to ascertain whether the applicants have furnished prima facie evidence in support of their version of events. If that is the case, the burden of proof should shift to the Government (see, mutatis mutandis, El-Masri, cited above, § 152, and Baka v. Hungary [GC], no. 20261/12, § 149, 23 June 2016). 86. The Court notes that the applicants gave a coherent account of their individual circumstances, their countries of origin, the difficulties that had led them to Mount Gurugu and their participation on 13 August 2014, together with other migrants, in the storming of the fences erected at the land border between Morocco and Spain (see paragraphs 24 et seq. above), the storming of which was immediately repelled by the Spanish Guardia Civil. In support of their assertions the applicants provided video-footage showing the storming of the fences as described by them, and on which they claimed to recognise themselves. The expert reports provided by the Government, meanwhile, served only to demonstrate the impossibility of identifying the applicants in the footage, but did not refute the applicants’ arguments. 87. The Court further observes that, as noted in paragraph 59 of the Chamber judgment, the Government did not deny the existence of the summary expulsions of 13 August 2014 and, shortly after the events in the present case, even amended the Institutional Law on the rights and freedoms of aliens in Spain in order to legalise this practice (see paragraphs 20 and 33 above). 88. In such circumstances and in view of the background to the present case, the Court considers that the applicants have presented prima facie evidence of their participation in the storming of the border fences in Melilla on 13 August 2014 which has not been convincingly refuted by the Government. Consequently, the Court dismisses the Government’s preliminary objection of lack of victim status, and will presume the account of the events presented by the applicants to be truthful. II. THE ISSUE OF JURISDICTION UNDER ARTICLE 1 OF THE CONVENTION 89. Article 1 of the Convention provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” A. The Chamber judgment 90. The Chamber did not consider it necessary to determine whether the fences scaled by the applicants were located on Spanish or Moroccan territory. It took the view that from the point in time at which the applicants climbed down from the fences they had been under the continuous and exclusive control, at least de facto, of the Spanish authorities. There were no considerations regarding the powers, functions and actions of the Spanish security forces capable of leading to any other conclusion. Referring to the judgment in Hirsi Jamaa and Others (cited above), the Chamber thus held that, in any event, the alleged facts came within Spain’s “jurisdiction” within the meaning of Article 1 of the Convention. B. The parties’ submissions 91. The Government contested the assertion that Spain was responsible for events occurring in the border area separating the Kingdom of Morocco and the Kingdom of Spain. They confirmed that the fences had been erected on Spanish territory. However, they submitted that the three fences at the Melilla border constituted an “operational border” designed to prevent unauthorised entry by non-nationals. After the introduction of the system of border controls, Spain had limited its “jurisdiction”, which began beyond the police line forming part of “measures against persons who [had] crossed the border illegally” within the meaning of Article 13 of the Schengen Borders Code. In other words, it came into play only at the point where migrants had crossed all three of the fences comprising the system of border controls and had passed the police line (see paragraphs 15 et seq. above). In the Government’s assertion, it was only after that point that Spain was bound by the obligation under the Convention to identify the persons concerned and by the procedural safeguards applicable to expulsion procedures. Were it otherwise, the result would be a “calling effect” liable to degenerate into a humanitarian crisis of major proportions. 92. The Government maintained that the applicants, after scaling the fences, had not climbed down from the “inner” fence (the third fence, on the Spanish side) by themselves, but had been apprehended by the Guardia Civil officials and escorted back to Morocco. As they had not passed the police line they had not come within Spain’s full jurisdiction. 93. The applicants took the view that Spain’s jurisdiction was not open to question in the present case in so far as the fences were located on Spanish territory, a fact which had been acknowledged by the Government. The concept of “jurisdiction” was principally territorial and was presumed to be exercised normally throughout the State’s territory (the applicants referred to Hirsi Jamaa and Others, cited above, § 71). No exceptions could be made to that principle. 94. In any event, the applicants were of the view that the removal of non-national migrants, the effect of which was to prevent them from reaching the borders of the State or to send them back to another State, constituted an exercise of jurisdiction within the meaning of Article 1 of the Convention which engaged the responsibility of the State in question under Article 4 of Protocol No. 4 (ibid., § 180). Where there was control over another by agents of the State, this was exercised by the State in question over the individuals concerned (ibid., § 77). C. The third parties’ observations 95. The French Government did not subscribe to the Chamber’s assessment regarding the nature of the control exercised over the applicants, taking the view that the applicants had not been within the jurisdiction of the Spanish State for the purposes of Article 1 of the Convention. In their view, “effective and continuous” control for the purposes of the Court’s case-law implied a certain duration and actual control (physical or in the form of authority) over the persons concerned. A form of control that was confined, as in the present case, to a brief, limited intervention in the context of action to defend the country’s land borders and protect national security could not, in their submission, give rise to extraterritorial application of the Convention. 96. The Italian Government, for their part, noted that the applicants had not been staying on the territory of the Spanish State. They stressed that Directive 2008/115/EC (the “Return” Directive) applied only to third ‑ country nationals staying illegally on the territory of a member State. They referred to the European Union rules and, in particular, to the Schengen Borders Code (see paragraphs 45 et seq. above), which required member States with EU external borders to operate tight border controls. 97. The Belgian Government submitted that the facts of the case fell exclusively within the scope of surveillance of the external borders of the Schengen Area. Where a member State operated border controls, it could not be required to admit persons attempting to cross the border illegally. Where such persons were turned back – with or without being intercepted – they could not be said to have entered the territory of the State concerned and to come within its jurisdiction. The findings regarding the issue of jurisdiction in Hirsi Jamaa and Others and Khlaifia and Others could not be transposed to the instant case since the international law of the sea, which had played a key role in those cases, was not applicable in the present case. 98. The non-State third parties argued in the Chamber and Grand Chamber proceedings that Spanish jurisdiction applied in the border area. Some of them contested, in particular, the Guardia Civil border control operations protocol of 26 February 2014 and service order no. 6/2014 of 11 April 2014, which excluded application of the legislation on aliens’ rights in the border area and Spain’s jurisdiction in that regard, unless the migrants in question had climbed down from the inner fence and gone beyond the police line. They pointed out that this land came within Spain’s jurisdiction under domestic and international law in all other contexts. 99. The CEAR argued that Spanish jurisdiction was applicable in the present case, finding support, in particular, in the passages from the annual reports of the Spanish Ombudsperson’s Office set out at paragraphs 39 et seq. above. 100. The AIRE Centre, Amnesty International, ECRE, the International Commission of Jurists and the Dutch Council for Refugees, which submitted joint observations as third ‑ party interveners, cited the judgment in Hirsi Jamaa and Others (cited above, § 180) to the effect that “the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of their sovereign authority, the effect of which [was] to prevent migrants from reaching the borders of the State or even to push them back to another State, constitute[d] an exercise of jurisdiction within the meaning of Article 1 of the Convention which engage[d] the responsibility of the State in question under Article 4 of Protocol No. 4”. In their view, the same must apply to situations in which persons arriving in Spain illegally were refused entry into the country (they referred to Sharifi and Others, cited above, § 212). These persons were under the effective control of the authorities of that State, whether they were inside the State’s territory or on its land borders. 101. The United Nations High Commissioner for Human Rights stressed in the Chamber proceedings that border control measures were not exempt from the concept of jurisdiction and that international human rights obligations were fully applicable in that regard. D. The Court’s assessment 1. General principles 102. Under Article 1 of the Convention, the undertaking of the Contracting States is to “secure” (“ reconnaître ” in French) to everyone within their “jurisdiction” the rights and freedoms defined in the Convention (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others (dec.), [GC], no. 52207/99, § 66, ECHR 2001-XII). Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports 1998-I, and Matthews v. the United Kingdom [GC], no. 24833/94, § 29, ECHR 1999-I). The exercise of “jurisdiction” is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII). 103. A State’s jurisdictional competence under Article 1 is primarily territorial (see Banković and Others, cited above, § 59; Ilaşcu and Others, cited above, § 3 12; and Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 178, 29 January 2019). It is presumed to be exercised normally throughout the State’s territory. Only in exceptional circumstances may this presumption be limited, particularly where a State is prevented from exercising its authority in part of its territory (see Assanidze v. Georgia [GC], no. 71503/01, §§ 137-39, ECHR 2004-II, and Ilaşcu and Others, cited above, §§ 312-13 and 333). 2. Application to the present case 104. The Court notes at the outset that it is not disputed that the events in issue took place on Spanish territory. Moreover, the Government acknowledged that the three border fences at Melilla had been erected on their territory. However, they invoked an exception to territorial jurisdiction which not only encompassed any land between the Moroccan-Spanish border and the outer fence of the Melilla border-protection system, but extended up to the point of descent from the “inner” (third) fence (on the Spanish side) and the area between that fence and the police line, up to the point where the latter had been passed. 105. As a State’s jurisdiction is presumed to be exercised throughout its territory, the question to be addressed is whether the Spanish State may, by invoking exceptional circumstances as it has done, alter or reduce the extent of its jurisdiction by claiming an “exception to jurisdiction” applicable to the part of its territory where the events in issue took place. 106. In that regard the Court observes at the outset that its case-law precludes territorial exclusions (see Matthews, cited above, § 29, and Assanidze, cited above, § 140) other than in the instance referred to in Article 56 § 1 of the Convention (dependent territories), which is not applicable in the present case. However, it has previously acknowledged that the States which form the external borders of the Schengen Area are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum-seekers (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 223, ECHR 2011; Hirsi Jamaa and Others, cited above, § 122; and Sharifi and Others, cited above, § 176), but did not draw any inferences with regard to the jurisdiction of the States concerned. 107. In the instant case the Government referred to the difficulty of managing illegal immigration through the Melilla enclave and, in particular, the storming of the border fences by groups generally comprising several hundred non-nationals. However, they did not allege that this situation prevented them from exercising their full authority over this part of the national territory. Indeed it is clear that the Spanish authorities alone were acting there, as is apparent from the case file and from the video-footage provided by the parties, which shows that it was Spanish law-enforcement officials who helped the migrants concerned to climb down from the fences. 108. Hence, the Court cannot discern any “constraining de facto situation” or “objective facts” capable of limiting the effective exercise of the Spanish State’s authority over its territory at the Melilla border and, consequently, of rebutting the “presumption of competence” in respect of the applicants (see Ilaşcu and Others, cited above, §§ 313 and 333). 109. The Court further reiterates that the concept of “jurisdiction” for the purposes of Article 1 of the Convention must be considered to reflect the term’s meaning in public international law (see Ilaşcu and Others, cited above, § 312, and Assanidze, cited above, § 137). Under that law, the existence of a fence located some distance from the border does not authorise a State to unilaterally exclude, alter or limit its territorial jurisdiction, which begins at the line forming the border. Furthermore, as regards the argument of some of the third-party interveners that EU law required member States to protect the European Union’s external borders under the Schengen Borders Code (see paragraphs 45-46 above), the Court observes that Article 1, Article 2 § 2 (a) and Article 4 §§ 3 and 4 of the Return Directive make clear that States may adopt or maintain provisions that are more favourable to persons to whom they apply, without their decisions and actions in that regard coming within the European Union’s sphere of competence (see paragraph 47 above). Furthermore, this EU legislation does not affect Spanish jurisdiction under international law. Besides, as is stipulated in Article 27 of the Vienna Convention on the Law of Treaties, the provisions of internal law may not be invoked as justification for failure to perform a treaty (see paragraph 61 above). 110. Furthermore, the Court has previously stated that the special nature of the context as regards migration cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see, mutatis mutandis, Hirsi Jamaa and Others, cited above, § 178). As a constitutional instrument of European public order (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310, and Al ‑ Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, ECHR 2011), the Convention cannot be selectively restricted to only parts of the territory of a State by means of an artificial reduction in the scope of its territorial jurisdiction. To conclude otherwise would amount to rendering the notion of effective human rights protection underpinning the entire Convention meaningless (see Assanidze, cited above, § 142). 111. Accordingly, the events giving rise to the alleged violations fall within Spain’s “jurisdiction” within the meaning of Article 1 of the Convention. Consequently, the Court dismisses the Government’s objection as to lack of jurisdiction. III. THE GOVERNMENT’S OTHER PRELIMINARY OBJECTIONS A. The applicants’ alleged loss of victim status 112. The Government submitted that, even assuming that the persons visible in the video-footage were indeed the applicants (see paragraphs 80 ‑ 88 above), the latter had ceased to have victim status in so far as, a few months later, they had succeeded in entering Spanish territory illegally and had been the subject of expulsion orders issued in the context of proceedings which, in the Government’s view, had been attended by all the necessary safeguards (see paragraphs 28 et seq. above ). Furthermore, by the time they lodged their applications with the Court the applicants had already been the subject of the aforementioned individualised expulsion procedures. Only the first applicant had subsequently applied for asylum, although both applicants had been assisted by lawyers and interpreters. They had therefore ceased to have victim status when they had succeeded in entering Spain in late 2014 without seeking to take full advantage of the procedures available to them. Accordingly, in the Government’s view, the applications should be struck out of the list of cases under Article 37 § 1 (b) and (c) of the Convention. 113. With regard to the administrative expulsion proceedings commenced in 2015, the applicants stressed that their applications related solely to the summary expulsions of 13 August 2014 and not to the subsequent proceedings referred to by the Government, which had been instituted on the basis of different facts. 114. In a case of alleged expulsion such as the present one, the Court cannot take into consideration events that occurred following a separate crossing of the border. Consequently, it dismisses the Government’s request to strike the case out of its list on this ground. B. Exhaustion of domestic remedies 1. The Government 115. In the Government’ submission, the two applicants could have tried to obtain entry visas for Spain in their respective countries of origin, under section 27(1) of the LOEX (see paragraph 32 above). The first applicant, in particular, could have applied for a special working visa under the Framework Agreement on cooperation in the field of immigration between Spain and Mali of 23 January 2007. Between 2015 and 2017, 34 working visas had been issued to Malian nationals and 31 to nationals of Côte d’Ivoire. The applicants could also have applied for asylum in Morocco or in any Spanish consulate in the countries they had travelled through on their way to Morocco, including in their countries of origin (section 38 of Law no. 12/2009 of 30 October 2009 on asylum and subsidiary protection, see paragraph 34 above). They could likewise have applied at the Spanish embassy in Rabat, the consulate in Nador (16.8 km from Melilla) or at the Beni Enzar official border crossing point, from where they would have been taken to the Melilla police station (section 21(1) of Law no. 12/2009, cited above). 116. The Government also observed that the orders for the applicants’ expulsion had not been challenged in the administrative courts and that only the first applicant had lodged an asylum application, aimed solely at obtaining a stay of execution of his expulsion. This had been rejected following two reports from UNHCR concluding that there were no grounds for granting asylum. In the absence of any administrative appeal against the expulsion order, it had been enforced on 31 March 2015 and the first applicant had been sent back to Mali. As to the second applicant, he had not challenged the decision of 23 February 2015 dismissing his administrative appeal against the order for his expulsion, despite the fact that, like the first applicant, he had been represented by a lawyer (see paragraphs 28 et seq. above). 2. The applicants 117. In the applicants’ submission, there had been no mechanism enabling them to gain lawful access to Spanish territory in order to apply for asylum there. They maintained that the Beni Enzar official border crossing point was not accessible to migrants from sub-Saharan Africa. According to the reports furnished by the applicants and some of the third-party interveners in the Grand Chamber proceedings, the Moroccan authorities restricted access to that crossing point in practice. In the applicants’ submission, the only options available to them in order to enter Spain had been to climb the fences or cross the border illegally with the help of smugglers. 118. The applicants argued that the Moroccan authorities had not recognised any international protection mechanism until 2013. In 2013 ‑ 2014, when the Moroccan Office for Refugees and Stateless Persons (BRA) had resumed operations, its activities had been confined to regularising the status of refugees who had been recognised by UNHCR in the meantime. Likewise, Mauritania had no effective refugee protection system (operated either by the State itself or by UNHCR), and the situation was the same in Algeria. In Mali, the national asylum system, which existed in theory but operated on a discretionary basis, did not make available any data regarding asylum applications; moreover, UNHCR had ceased its activities there in 2002. Furthermore, the countries mentioned – Morocco, Algeria, Mauritania and Mali – were not on the list of safe countries in that regard. In the applicants’ view, the possibility of applying for international protection in third countries did not constitute an effective remedy and was in any event non-existent. The remedies in question would have had to be available, effective and have suspensive effect, and to prove workable in respect of the collective nature of the expulsion; this had clearly not been the case. 119. The applicants stressed that their applications concerned the summary expulsions of 13 August 2014 and not the subsequent proceedings referred to by the Government, which related to different facts. In any event, only domestic remedies which had suspensive effect, and were therefore deemed effective, had to be exhausted. In the applicants’ submission, Article 4 of Protocol No. 4 to the Convention and Article 13 of the Convention were closely linked (they referred to Georgia v. Russia (I) [GC], no. 13255/07, § 212, ECHR 2014 (extracts)). As far as their summary expulsion on 13 August 2014 was concerned, they had not had access to any effective remedy which they could have exercised before or after the enforcement of the orders for their expulsion. 3. The Court’s assessment 120. The Court observes that the Government have outlined the different procedures which, they maintain, were available to the applicants in order to enter Spanish territory lawfully with an entry visa or a contract of employment or as asylum-seekers (see paragraph 115 above). In the light of the applicants’ complaint that they were subjected to a collective expulsion, the procedures proposed by the Government cannot be regarded as effective remedies in respect of the alleged violation. The Government themselves presented them as alternatives to illegal entry rather than as remedies. This question will be examined further below. 121. Furthermore, and in so far as the Government refer to the expulsion orders issued after the events under consideration in the present applications, and to the asylum proceedings begun by the first applicant in 2015 while he was still in Spain (see paragraphs 112 et seq. above), the Court has already found (see paragraph 114 above) that, although the applicants did not exhaust the available remedies in respect of the expulsion orders or the refusal of asylum, these matters do not constitute the subject matter of the present case, which concerns the alleged collective expulsion following the events of 13 August 2014. 122. The Government’s objection of non-exhaustion must therefore be dismissed. IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION 123. The applicants contended that they had been subjected to a collective expulsion without an individual assessment of their circumstances and in the absence of any procedure or legal assistance. In their view, this situation reflected a systematic policy of removing migrants without prior identification, which had been devoid of legal basis at the relevant time. They specified that the present applications did not concern the right to enter the territory of a State but rather the right to an individual procedure in order to be able to challenge an expulsion. They relied in this regard on Article 4 of Protocol No. 4 to the Convention, which provides: “Collective expulsion of aliens is prohibited.” A. The Chamber judgment 124. The Chamber found that the Government’s preliminary objection regarding the applicability ratione materiae of Article 4 of Protocol No. 4 in the present case was closely linked to the substance of the applicants’ complaint and should be joined to the merits of the case. The Chamber did not deem it necessary to determine whether the applicants had been removed after entering Spanish territory, or before managing to do so as argued by the Government. It held that if interceptions on the high seas came within the ambit of Article 4 of Protocol No. 4 (see Hirsi Jamaa and Others, cited above, § 180, and Sharifi and Others, cited above, § 212), the same must also apply to the refusal of entry to the national territory in respect of persons arriving in Spain illegally. The Chamber concluded from this that the case did indeed concern an “expulsion” for the purposes of Article 4 of Protocol No. 4 (see paragraphs 98 et seq. of the Chamber judgment, in particular paragraphs 102-05). As to the merits of the complaint concerning the “collective” nature of the expulsion, the Chamber concluded that, since the removal measures had been taken in the absence of any procedure whatsoever and without any assessment of the applicants’ individual circumstances or any prior administrative or judicial decision, their expulsion had indeed been collective, in breach of the aforementioned provision. B. The parties’ submissions before the Grand Chamber 1. The Government 125. The Government submitted that the scope of application of Article 4 of Protocol No. 4 had been widened by the Court’s case-law, and argued that the provision in question was inapplicable in the present case. 126. In the Government’s view, the provision in question was applicable to aliens arriving in a State’s territory in a peaceful manner. In this context the Government relied on Article 51 of the UN Charter, which articulates States’ inherent right of individual or collective self-defence if an armed attack occurs against a member State. In the Government’s submission, Article 4 of Protocol No. 4 further required the existence of a dangerous situation for the applicants (either in their country of origin or because they were arriving by sea) and an inability on their part to apply for asylum or lawful entry because they were not yet on the territory of the aforementioned State. 127. Article 4 of Protocol No. 4 was therefore inapplicable where there was no danger to the applicants and/or there was a possible means of requesting asylum or entering from a safe country. The Government referred in that regard to paragraphs 177 and 174 of the judgment in Hirsi Jamaa and Others (cited above), and emphasised the fact that the applicants in the present case were migrants who had attempted to enter Spain illegally by crossing a land border. The applicants had provided no evidence that they fell into one of the internationally recognised categories for the granting of asylum. 128. The Government maintained that the principle of non-refoulement could be applied only to persons who were in danger or faced a risk recognised under international law. The applicants in the present case had not faced any such risk in Morocco, as confirmed by the Court in its decision declaring the complaint under Article 3 inadmissible. Moreover, even after they had succeeded in entering Spain the applicants had requested asylum belatedly (N.D.), or not at all (N.T.). In the Government’s view, they could not therefore be regarded as asylum-seekers. The applicants came from safe third countries, they had not been exposed to risk and they could have entered Spain lawfully if they had submitted asylum applications at the Spanish embassy or consulates in Morocco (see paragraph 34 above) or in the other countries they had travelled through, or at the authorised border crossing point at Beni Enzar. Alternatively, they could have secured contracts to work in Spain from their countries of origin. The Government referred in that regard to the report of 18 December 2015 by the Melilla police directorate, which stated that six asylum applications had been submitted at Beni Enzar between 1 January and 31 August 2014 and that, after the office for registering asylum claims had been opened by the Spanish authorities at Beni Enzar on 1 September 2014, 404 applications had been lodged at the same location during the last four months of that year. The Government stated that “before the Special International Protection Unit was built and deployed at [Beni Enzar], the applicant for asylum was informed of his rights, with the help of an interpreter and assisted by a free of charge specialized lawyer assigned by the Bar. He/she was then driven to an open Centre for the Temporary Stay of Migrants, where their basic needs were taken care of. Health services, social services and NGO’s [ sic ] develop their work in these centres too.” In the Government’s view, the applicants had taken part in an illegal storming of the border fences in an attempt to enter Spanish territory without using the designated border crossing points. Furthermore, migratory pressures had been especially intense in 2014 owing to the proliferation of networks of smugglers organising repeated, large-scale and violent assaults on the fences in order to enter Spain through Melilla. 129. In the Government’s view, the right to enter Spanish territory as claimed by the applicants, that is to say, the right to enter at any point along the border without undergoing any checks, was contrary to the Convention system and posed a threat to the enjoyment of human rights both by the citizens of the member States and by migrants, while affording substantial profits to the criminal organisations engaged in human trafficking. The Government argued that a decision by the Court legitimising such illegal conduct would create an undesirable “calling effect” and would result in a migration crisis with devastating consequences for human rights protection. 130. In that regard, Articles 72 and 79 of the TFEU itself (see paragraph 43 above) stipulated that policies on border checks, asylum and immigration must not affect the exercise of the responsibilities incumbent upon member States with regard to the maintenance of law and order and the safeguarding of internal security. In the Government’s submission, compliance with the obligations flowing from the Convention and from Article 4 of Protocol No. 4 was compatible with the maintenance of a system for the protection of Spain’s borders. 131. The Government referred to the special rules for Ceuta and Melilla laid down in the tenth additional provision of the LOEX, as amended by Institutional Law no. 4/2015, cited above (see paragraph 33 above). As a sovereign State belonging to the European Union and forming part of the Schengen external border, Spain had a duty to protect, monitor and safeguard its borders. Hence, that duty transcended the purely national context and constituted a responsibility towards the European Union as a whole. 132. The Government argued that, in any event, the facts of the present case did not amount to a “collective expulsion of aliens”, since, in order to come within the scope of Article 4 of Protocol No. 4, the measure in question had to constitute the “expulsion” of persons who were in the territory of the respondent State. In their view, the present case did not concern an “expulsion”, but rather the prevention of illegal entry into Spanish territory. They stressed the clear distinction made in the Schengen Borders Code between preventing entry into a European Union member State and the procedure to be followed with regard to persons who had succeeded in entering illegally. 133. The Government added that the expulsion also had to be “collective” (that is, it had to affect a group of persons linked by the same set of circumstances, specific to that group), and had to be applied to “aliens”. 134. They contested the findings of the Chamber judgment in so far as no right existed in their view to enter a given State without using the border crossing points. In support of their argument they cited the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights and Articles 2 and 3 of Protocol No. 4 to the Convention. They also referred to paragraph 184 of Hirsi Jamaa and Others (cited above), according to which the Court took into account, in its case-law on Article 4 of Protocol No. 4, whether the lack of an individual removal decision could be attributed to the culpable conduct of the person concerned (the Government cited Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03, ECHR 2005-VIII (extracts), and Dritsas and Others v. Italy (dec.), no. 2344/02, 1 February 2011). They requested the Court to find that the applications were inadmissible or, failing that, that there had been no violation of Article 4 of Protocol No. 4 or of Article 13 of the Convention. 2. The applicants 135. Referring to the travaux préparatoires of Protocol No. 4, cited in Hirsi Jamaa and Others (cited above, §§ 171 and 174), the applicants observed that no distinction could be made between refugees and non ‑ refugees or between regular and irregular migrants with regard to the protection guaranteed by Article 4 of Protocol No. 4. They noted that the Committee of Experts charged with drafting the Protocol had expressly stated that the term “aliens” applied to “all those who [had] no actual right to nationality in a State, whether they [were] merely passing through a country or reside[d] or [were] domiciled in it, whether they [were] refugees or [had] entered the country on their own initiative, or whether they [were] stateless or possess[ed] another nationality” ( travaux préparatoires, section 61, § 34). This position was reflected in the Court’s case-law (the applicants referred to Sharifi and Others, § 211, and Georgia v. Russia (I), both cited above) and in international law, where the applicability of the prohibition of the collective expulsion of aliens was not linked to their refugee status or to their intention or ability to claim asylum in the country concerned or in a transit country. 136. The applicants referred to the observations of the United Nations High Commissioner for Human Rights (OHCHR) in the Chamber proceedings, which stated that the prohibition on collective expulsion was distinct from the principle of non-refoulement in so far as it was part of the right to a fair trial, and that this rule required States which were planning to expel a group of aliens to examine the individual situation of each person concerned by the expulsion measure and to take decisions on a case-by-case basis, by means of a procedure ensuring that sufficient consideration was given to each individual’s circumstances. OHCHR had added that individuals might have reasons other than asylum for appealing against their expulsion. 137. As to the Government’s argument that, in accordance with the concept of an operational border, the present case did not concern an expulsion but rather a refusal of entry or a defensive mechanism against unauthorised entry, the applicants submitted that this was irrelevant in so far as the word “expulsion” was to be interpreted “in the generic meaning, in current use (to drive away from a place)” (they referred to Hirsi Jamaa and Others, cited above, § 174, and Khlaifia and Others, cited above, §§ 243 ‑ 44). In the applicants’ view, Article 4 of Protocol No. 4 was therefore applicable in the present case. 138. As to the “collective” nature of the expulsion, the applicants submitted that the key point in determining whether or not their expulsion had been contrary to Article 4 of Protocol No. 4 was whether the removal procedure had been individualised. As the Court had reaffirmed in Khlaifia and Others (cited above), “[t]he purpose of Article 4 of Protocol No. 4 [was] to prevent States from being able to remove a certain number of aliens without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority” (ibid., § 238). In ruling on the existence of a collective expulsion the Court sought to ascertain, in the light of the circumstances of the case, whether each of the persons concerned had had “a genuine and effective possibility of submitting arguments against his or her expulsion” and whether those arguments “[had been] examined in an appropriate manner by the authorities of the respondent State” (ibid., § 248). 139. The applicants alleged that they had been part of a group of individuals who had attempted to climb over the Melilla fences and that they had been expelled in similar fashion to the migrants in the cases of Hirsi Jamaa and Others and Sharifi and Others (both cited above). They maintained that they had been quite simply expelled without any procedure, on the basis of the automatic application of the Guardia Civil operations protocol of 26 February 2014 and service order no. 6/2014 of 11 April 2014, without being identified and without any papers being drawn up or issued to them. The applicants observed that, according to the Court’s case-law, the fact of belonging to a group was relevant only in so far as it reflected the collective manner in which the State had dealt with the persons concerned in ordering and enforcing their expulsion. 140. The applicants noted that the Guardia Civil officials who had been in the vicinity of the fences on 13 August 2014 had not been in a position to consider the applicants’ arguments against their expulsion, as their task was confined to patrolling the border. 141. In the applicants’ view, their collective expulsion was also contrary to European Union law, which was applicable in Melilla, a Spanish autonomous city. The EU Directive on asylum procedures required EU member States, among other things, to facilitate access to their asylum procedures for persons who had made an application for protection and who “[could] be understood to seek refugee status”, including “at the border, in the territorial waters or in the transit zones”. Even the Schengen Borders Code expressly set limits on States’ obligation to monitor their external borders, requiring them to provide “a substantiated decision stating the precise reasons for the refusal [of entry]”, taken “by an authority empowered by national law”, and to notify the persons concerned of the decision by means of a “standard form”. C. The third parties’ observations 1. The Commissioner for Human Rights of the Council of Europe 142. The Commissioner for Human Rights and her predecessor observed that collective expulsions made it impossible to protect migrants’ fundamental rights, and in particular the right to seek asylum, and that in practice immediate returns deprived migrants of their right to an effective remedy by which to challenge their expulsion. The Commissioner for Human Rights stressed that the border fences in question were part of Spanish territory and that the question that arose in the present case was not so much whether the applicants should have requested asylum but whether their right to protection against collective expulsions had been breached. 143. The Commissioner for Human Rights observed that the territories of Ceuta and Melilla were part of the Schengen Area. Under the LOEX (Institutional Law no. 4/2000) as in force at the time of the events, aliens could be refused entry at border posts and aliens attempting to enter the country in an unauthorised manner, including those intercepted near the border, could be sent back. However, these procedures required the identification and registration of the persons intercepted, respect for procedural guarantees, access to a lawyer and an interpreter, and access to the relevant legal remedies. The Commissioner noted that the LOEX had been amended in 2015 in order to lend coherence to the Government’s concept of an “operational border”, and that this amendment was liable to erode migrants’ fundamental rights protections and encourage the practice of summary returns by other member States. She had therefore called on the national authorities to reconsider the amendment, to improve the ambiguous legal framework governing rejections at the border (“push-backs”) and to put in place a clear procedural system, compliant with international human rights law, for the border police in Ceuta and Melilla. She observed that an office responsible for dealing with asylum applications had been opened in Beni Enzar in November 2014. However, access to this border crossing point continued to be impossible for persons from sub ‑ Saharan Africa who were on the Moroccan side of the border, whose only option in order to enter Spain was to climb over the border fences. The Commissioner for Human Rights referred in particular to the report of the fact ‑ finding mission to Spain by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees, the relevant paragraphs of which are set out at paragraph 58 above. 2. The third-party Governments (a) The Belgian Government 144. The Belgian Government submitted that the facts of the case fell exclusively within the scope of surveillance of the external borders of the Schengen Area for the purposes of Article 77 § 1 (b) of the Treaty on the Functioning of the European Union. They pointed out that the rules regarding the crossing of borders had also been adopted at European level and that the member States were required to monitor their external borders and to take measures to prevent irregular crossings. The aim, in their submission, was to prevent third-country nationals from crossing the external Schengen borders illegally in unauthorised places. 145. They observed that, under Article 5 § 1 of the Schengen Borders Code, “[e]xternal borders [could] be crossed only at border crossing points ...”. They also referred to Article 13 of the Code, according to which the aim of border surveillance was “to apprehend individuals crossing the border illegally”. The procedure provided for in Directive 2008/115/EC (the Return Directive) applied to persons who had already crossed the border without authorisation. In the Belgian Government’s view, that directive was therefore inapplicable in the present case, since the border surveillance authorities had merely repelled an illegal crossing attempt by non-nationals, namely third-country nationals who had sought to enter the State’s territory without complying with the rules in force (that is to say, without requesting asylum or reporting to the border crossing point). Hence, these persons could not be considered to have entered the country’s territory. In the intervener’s view, allowing persons who circumvented the rules on crossing borders to enter the territory, when they did not report to an authorised crossing point and did not have the necessary documents to enter and remain in the country, would be wholly contrary to the European rules on border controls and the crossing of borders, depriving those rules of any purpose and encouraging human trafficking. Persons attempting to cross the border in this way had to be intercepted and handed over, if necessary using coercive means, to the authorities of the State from whose territory they had attempted to cross illegally. 146. As to the “collective” nature of the expulsion the Belgian Government argued, referring to Khlaifia and Others (cited above, § 234), that in order for Article 4 of Protocol No. 4 to be applicable it had first to be established that the aliens in question were on the territory of a member State and that the authorities of that State had taken measures and/or engaged in conduct aimed at compelling the aliens concerned to leave the State’s territory; this did not include measures such as the non-admission of an alien to the State. The fact of preventing a third-country national from crossing a Schengen external border illegally at an unauthorised point on a member State’s border necessarily implied that the person concerned had never entered the territory of that State, with the result that Article 4 of Protocol No. 4 to the Convention could not come into play. (b) The French Government 147. The French Government referred to paragraph 238 of the judgment in Khlaifia and Others (cited above) regarding the purpose of Article 4 of Protocol No. 4, which was to prevent States from being able to remove aliens without examining their personal circumstances. They pointed out that there was no violation of that provision “where the lack of an individual expulsion decision [could] be attributed to the culpable conduct of the person concerned”. They cited the decisions in Berisha and Haljiti and Dritsas and Others (both cited above). 148. The French Government submitted that the present case differed from that of Hirsi Jamaa and Others (cited above) and that the circumstances of the instant case and those of interceptions on the high seas could not be compared. The applicants in Hirsi Jamaa, who had been intercepted on the high seas, had not had any opportunity to have their individual circumstances examined and, in particular, to apply for asylum or for a residence permit. That was not the situation in the present case, as there had been nothing to prevent the applicants from making use of the avenues that were available to them in law and in practice in order to obtain individualised consideration of their circumstances by the competent Spanish authorities. The French Government took the view that the applicants had placed themselves in an unlawful situation resulting in the present proceedings and in the fact that no decisions could be taken. 149. As to the impact of European Union law in the present case, the French Government were of the view that the “Reception” Directive (Directive 2003/9, replaced on 21 July 2015 by Directive 2013/33/EU) and the “Procedures” Directive (Directive 2005/85, replaced on 21 July 2015 by Directive 2013/32/EU) were not applicable, as they applied only where a third-country national had lodged an asylum application at the border or on the territory of a member State (Article 3 of the directives). The applicants had not undertaken any such procedures on the date of the events in issue. Furthermore, the border guards were not required under those directives to inform third-country nationals apprehended at locations other than the border crossing points of the possibility of applying for asylum on the territory of the member State concerned. Even assuming that such a requirement to inform could be inferred from Article 6 § 5 of Directive 2005/85 or Article 8 of Directive 2013/32 where there was evidence to suggest that the persons concerned actually wished to apply for international protection, there was in any event no such evidence in the present case. (c) The Italian Government 150. The Italian Government observed that, according to the Court’s settled case-law, Contracting States had the right to control the entry, residence and removal of non-nationals (they referred, among many other authorities, to Saadi v. Italy [GC], no. 37201/06, § 124, ECHR 2008), and that neither the Convention nor its Protocols conferred the right to political asylum (they cited Ahmed v. Austria, 17 December 1996, § 38, Reports 1996-VI). 151. They noted that the applicants had not entered Spanish territory, and observed that Directive 2008/115/EC (the Return Directive) applied only to third-country nationals staying illegally on a member State’s territory. The present case concerned an attempt by third-country nationals to enter Spanish territory illegally despite having the option of applying for international protection, and therefore came within the sphere of the security policy and sovereignty of States and of Europe as a whole. The Italian Government pointed out that States had to comply with their obligations to monitor and control the European Union’s external borders, in the interests of all its member States and of efforts to combat human trafficking and illegal immigration. This, they argued, was wholly compatible with the Convention. 3. The other third-party interveners (a) UNHCR 152. In its written observations and at the hearing before the Court, UNHCR stated that prior to November 2014 it had not been possible to request asylum at the Beni Enzar border crossing point in Melilla or at any other location, and that there had been no system for identifying persons in need of international protection. 153. The removal of migrants attempting to enter Spain illegally through an unauthorised border crossing had to comply with certain safeguards laid down by the LOEX as in force at the relevant time. However, this was not the case in Ceuta and Melilla, resulting in “rejections at the border”. 154. UNHCR observed that the LOEX had been amended in 2015, after the events in the present case, and that the amendment had introduced into the Law the concept of “rejection at the border”, allowing the authorities to expel aliens attempting to cross the Spanish border at Ceuta and Melilla, in order to prevent their illegal entry into the country. In UNHCR’s view, this practice did not conform to the standards of international human rights law and asylum law, especially because of the lack of identification of the persons concerned and the lack of access to fair, efficient and effective procedures without discrimination. Since the entry into force of the amendment regular reports of such rejections (“push-backs”) continued to be received. 155. UNHCR observed that, in reality, migrants from sub-Saharan Africa did not have access to the immigration and asylum procedures at the authorised border crossing point in Melilla, as they were systematically prevented from reaching the border on the Moroccan side. Worse still, the placement of asylum-seekers in immigration detention in the Melilla and Ceuta enclaves, the length of the asylum procedure and the conditions in the detention centres, particularly the problem of overcrowding, deterred aliens acting in good faith from seeking international protection there. According to the intervener, expulsions and push-backs of migrants without individual identification and in inadequate reception conditions continued. (b) OHCHR 156. OHCHR observed that the prohibition of collective expulsion was a rule of international law inherent in the right to a fair trial. That rule required individualised examination by means of a procedure affording sufficient guarantees demonstrating that the personal circumstances of each of the persons concerned had been genuinely and individually taken into account; in the absence of such examination, expulsions were deemed to be collective in nature. The term “aliens” applied to all non-nationals of the country concerned, irrespective of whether or not they had refugee status. In OHCHR’s submission, the prohibition of collective expulsion differed from the principle of non-refoulement in that it formed part of the right to a fair trial. States had a duty to secure to the victims of collective expulsion the right to an effective remedy with automatic suspensive effect so that they could challenge the measure in question, and also to prevent measures being taken that were contrary to international human rights law, and, if appropriate, to provide redress for the violation, put an end to it, eliminate its consequences and afford compensation to the persons expelled in breach of the prohibition of collective expulsion. (c) The CEAR 157. The CEAR argued that there was no justification for applying the special rules for Ceuta and Melilla laid down by the tenth additional provision of the LOEX, which allowed the administrative authorities to send back migrants in the absence of any procedure, in a manner wholly incompatible with the principle of legal certainty. The intervener referred to the Guardia Civil operations protocol which, even before the legislative amendment in question, had allowed collective expulsions to be carried out without a requirement to afford any safeguards whatsoever at the time of expulsion. 158. In the CEAR’s view, the legal framework in Morocco regarding international protection was inadequate. Since ratification of the Geneva Convention Relating to the Status of Refugees in 1956, no asylum law had been passed. The BRA (see paragraph 118 above), which was responsible for recognising persons under UNHCR’s mandate, had been inactive from 2004 to 2013, when it had resumed operations. In practice, since 2013, the UNHCR office in Rabat had dealt with asylum applications, with the BRA taking the decisions on the recognition of refugee status in Morocco. However, most migrants trying to reach the UNHCR office in Rabat were arrested and detained, which prevented them from applying for protection (see paragraph 163 below). It was clear from the report of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment that sub-Saharan refugees were subjected to serious violence and sexual abuse on their route to Ceuta and Melilla. 159. The CEAR submitted that the Return Directive (2008/115/EU, see paragraph 47 above) was not applied to persons who entered Melilla by scaling the fences, who did not undergo any procedure and were immediately removed. In the intervener’s view, while it was possible not to apply the directive to persons who were subject to a refusal of entry or who were intercepted while crossing the border illegally (Article 2 § 2), the provisions of Articles 12 and 13 always had to be taken into account. The directive did not permit any exceptions to the right of asylum or the principle of non-refoulement, and required safeguards against arbitrary and/or collective expulsions. Immediate returns also breached the provisions of the Procedures Directive (2013/32/EU) and the Reception Directive (2013/33/EU) of 26 June 2013 concerning international protection and persons seeking such protection, owing to the lack of individual consideration of applications and the lack of information, procedural safeguards and so on. In cases of immediate return, the persons concerned were deprived of the right to claim asylum and were excluded from the benefit of these two directives. (d) The AIRE Centre, Amnesty International, the European Council on Refugees and Exiles (ECRE), the Dutch Council for Refugees and the International Commission of Jurists, acting jointly 160. These interveners submitted that, where Article 4 of Protocol No. 4 was engaged, it was for the State to provide an effective remedy with suspensive effect, at the very least where there was a risk to life or a risk of ill-treatment or collective expulsion. 161. They pointed out that Article 19 § 1 of the Charter of Fundamental Rights of the European Union prohibited collective expulsions, adding that States were not exempted from their obligations in that regard because the applicants might have omitted to expressly request asylum or to describe the risks to which they would be exposed in the event of expulsion. 162. The third-party interveners referred to the Procedures Directive (2013/32/EU, see paragraph 49 above), indicating that the acquis concerning the right to asylum applied not only to requests for international protection made by persons authorised to enter a State’s territory, but also to border procedures. In their view, the prohibition of refoulement applied to actions or omissions resulting in the expulsion from the national territory of non-nationals within the State’s territorial or extraterritorial jurisdiction. Refusing a group of non-nationals access to the territory or to the border without taking the individual circumstances of each of them into consideration amounted to a violation of Article 4 of Protocol No. 4 to the Convention. In the interveners’ view, the responsibility of European Union member States under the EU asylum system was engaged in respect of any individual who might wish to seek international protection. Hence, certain measures constituted an aggravated violation of Article 4 of Protocol No. 4 because of the additional breach of the obligations arising out of EU law. 163. The interveners contended that Spain was the EU member State with the highest rate of refusal of asylum applications. They noted that certain nationalities were prevented by the Moroccan police from gaining access to the Beni Enzar border crossing point for reasons of racial profiling, as evidenced by various reports from NGOs including Amnesty International and the CEAR. D. The Court’s assessment 1. Applicability 164. In order to determine whether Article 4 of Protocol No. 4 is applicable the Court must seek to establish whether the Spanish authorities subjected the applicants to an “expulsion” within the meaning of that provision. 165. In the Government’s view (see paragraphs 125 et seq. above), Article 4 of Protocol No. 4 did not apply to the facts of the present case because the applicants had not been subjected to an “expulsion” but rather had been refused admission into the respondent State. They argued that the applicants had not entered Spanish territory but had merely attempted to enter Spain illegally by crossing a land border. It was true that they had come under the control of the border guards after crossing two fences, but in any event they had not been given leave to enter Spanish territory lawfully. For an expulsion to occur, the person concerned had to have first been admitted to the territory from which he or she was expelled. The Government called into question the Court’s case-law, which, they argued, had departed from the intentions of the drafters of Article 4 of Protocol No. 4 by extending its scope of application to extraterritorial situations (the Government referred to Hirsi Jamaa and Others, cited above, §§ 170-71). In their view, that case-law could not apply in any circumstances to events which, as in the present case, took place in the vicinity of States’ land borders, given that the Hirsi Jamaa and Others judgment itself drew a distinction between “migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State ... [and] those travelling by land” (ibid., § 177). Article 4 of Protocol No. 4 did not afford any protection to the latter, who had the opportunity to cross a land border lawfully but did not make use of it. In the instant case the applicants had not demonstrated that they had been unable to enter Spanish territory lawfully. The Governments of Belgium, France and Italy, in their capacity as third-party interveners, agreed with this argument (see paragraphs 144 et seq. above). (a) General principles 166. The Court notes that in the present case it is called upon for the first time to address the issue of the applicability of Article 4 of Protocol No. 4 to the immediate and forcible return of aliens from a land border, following an attempt by a large number of migrants to cross that border in an unauthorised manner and en masse. Although the Government referred to States’ inherent right of individual or collective self-defence if an armed attack occurred against a member State of the United Nations, the Court notes that Spain has not indicated that it has referred the matter to the Security Council of the United Nations, as anticipated by Article 51 of the UN Charter (see paragraph 60 above) in this regard. In the circumstances of the case, the Court sees no need to pursue this argument further. 167. The Court finds it appropriate in the present case to place Article 4 of Protocol No. 4 in the context of its case-law on migration and asylum. It should be stressed at the outset that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see, among many other authorities, Paposhvili, cited above, § 172; Hirsi Jamaa and Others, cited above, § 113; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI; and N. v. the United Kingdom [GC], no. 26565/05, § 30, ECHR 2008). The Court also reiterates the right of States to establish their own immigration policies, potentially in the context of bilateral cooperation or in accordance with their obligations stemming from membership of the European Union (see Georgia v. Russia (I), cited above, § 177; Sharifi and Others, cited above, § 224; and Khlaifia and Others, cited above, § 241). 168. With this in mind, the Court stresses the importance of managing and protecting borders and of the role played in that regard, for those States concerned, by the Schengen Borders Code, which provides that “[b]order control is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control” and “should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations” (recital 6, see paragraph 45 above). For that reason, the Contracting States may in principle put arrangements in place at their borders designed to allow access to their national territory only to persons who fulfil the relevant legal requirements. 169. Furthermore, the Court has previously emphasised the challenges facing European States in terms of immigration control as a result of the economic crisis and recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East (see M.S.S. v. Belgium and Greece, cited above, § 223; Hirsi Jamaa and Others, cited above, §§ 122 and 176; and Khlaifia and Others, cited above, § 241). This also applies to the situation in Ceuta and Melilla, the Spanish enclaves in North Africa. 170. Nevertheless, the Court has also stressed that the problems which States may encounter in managing migratory flows or in the reception of asylum-seekers cannot justify recourse to practices which are not compatible with the Convention or the Protocols thereto (see Hirsi Jamaa and Others, cited above, § 179). 171. In that regard it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Leyla Şahin v. Turkey [GC], no. 44774/98, § 136, ECHR 2005 ‑ XI; Hirsi Jamaa and Others, cited above, § 175; and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 272, 13 September 2016). The Court has also emphasised, like UNHCR, the link between the scope of Article 4 of Protocol No. 4 as defined by the Grand Chamber, and that of the Geneva Convention and of the principle of non-refoulement (see Sharifi and Others, cited above, § 211). Hence, the domestic rules governing border controls may not render inoperative or ineffective the rights guaranteed by the Convention and the Protocols thereto, and in particular by Article 3 of the Convention and Article 4 of Protocol No. 4. 172. Despite its specific character as a human rights instrument, the Convention is an international treaty to be interpreted in accordance with the relevant norms and principles of public international law and, in particular, in the light of the Vienna Convention on the Law of Treaties of 23 May 1969. Pursuant to the Vienna Convention, the Court must establish the ordinary meaning to be given to the terms in their context and in the light of the object and purpose of the provision from which they are taken. It must have regard to the fact that the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions. Thus the Court has never considered the provisions of the Convention to be the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties (see, among many other authorities, Al ‑ Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 134, 21 June 2016; Güzelyurtlu and Others, cited above, § 235; and Cyprus v. Turkey (just satisfaction) [GC], no. 25781/94, § 23, ECHR 2014). 173. In the present case, since the Government argued that the applicants’ case concerned a refusal of admission to Spanish territory rather than an expulsion, the Court is called upon to ascertain whether the concept of “expulsion” as used in Article 4 of Protocol No. 4 also covers the non ‑ admission of aliens at a State border or – in respect of States belonging to the Schengen Area – at an external border of that Area, as the case may be. 174. In that context the Court notes that Article 2 of the International Law Commission’s Draft Articles on the Expulsion of Aliens (cited at paragraph 65 above and in Khlaifia and Others, cited above, § 243) defines the term “expulsion” as “a formal act” or as “conduct attributable to a State by which an alien is compelled to leave the territory of that State”, emphasising that the term “does not include extradition to another State ... or the non-admission of an alien to a State”. The comments on the Guidelines of the Committee of Ministers of the Council of Europe reach a similar conclusion (see paragraphs 53-54 above). 175. As regards the concept of “non-admission”, the commentary on Article 2 of the Draft Articles states that it refers to cases where an alien is refused entry and that, in some legal regimes, the term “return” ( refoulement ) is sometimes used instead of “non-admission” (see paragraph 5 of the commentary on Article 2 of the International Law Commission’s Draft Articles on the Expulsion of Aliens, cited at paragraph 65 above). 176. However, it appears from this commentary that the exclusion of matters relating to non-admission from the scope of the Draft Articles is “without prejudice to the rules of international law relating to refugees”. This is provided for by Article 6 (b), which references the prohibition against refoulement within the meaning of Article 33 of the Geneva Convention relating to the Status of Refugees of 28 July 1951 (see paragraph 62 above). It should be noted that the second report on the expulsion of aliens examined in connection with the writing of the Draft Articles observed that the terms “expulsion”, “escort to the border” and “ refoulement ” were used interchangeably, without any particular semantic rigour. The International Law Commission’s Special Rapporteur, Mr Maurice Kamto, concluded that the word “expulsion” would consequently be used in the context of the present topic as a “generic term” to mean all situations covered by all three terms and many others, such as “return of an alien to a country” or “exclusion of an alien”, the list not being exhaustive (see paragraph 170 of the report, cited at paragraph 66 above). 177. Article 6 (b) of the Draft Articles provides that a State may not expel or return ( refouler ) a refugee in any manner whatsoever to a State or to the frontiers of territories where the person’s life or freedom would be threatened. In substance, this prohibition is also echoed, inter alia, in Articles 18 and 19 of the Charter of Fundamental Rights of the European Union (see paragraph 42 above), Article 78 § 1 of the TFEU (see paragraph 43 above), Article 3 of UNCAT (see paragraph 63 above), and Article 3 of the Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967 (see paragraph 64 above), and also in Guideline 2 of the Guidelines of the Committee of Ministers of the Council of Europe on Forced Return (see paragraph 53 above). 178. It is crucial to observe in this regard that the prohibition of refoulement includes the protection of asylum-seekers in cases of both non-admission and rejection at the border, as stated by UNHCR in its observations in the Chamber proceedings and in the conclusions on international protection adopted by its executive committee (see paragraph 67 above). 179. As regards the rules of international law concerning the prohibition of refoulement, it is also important to note that the commentary on Article 6 of the International Law Commission’s Draft Articles states that the notion of refugee covers not only refugees lawfully in the territory of the expelling State but also any person who, being unlawfully in that territory, has applied for refugee status, while his or her application is under consideration. However, this is without prejudice to the State’s right to expel an alien whose application for refugee status is manifestly abusive (see paragraph 65 above). 180. The Court also notes, like UNHCR, that in the specific context of migratory flows at borders, the wish to apply for asylum does not have to be expressed in a particular form. It may be expressed by means of a formal application, but also by means of any conduct which signals clearly the wish of the person concerned to submit an application for protection (see M.A. and Others v. Lithuania, no. 59793/17, § 109, 11 December 2018; see also Article 8 of the Procedures Directive, cited at paragraph 49 above). 181. If therefore, as indicated by the International Law Commission, the “non-admission” of a refugee is to be equated in substance with his or her “return ( refoulement )”, it follows that the sole fact that a State refuses to admit to its territory an alien who is within its jurisdiction does not release that State from its obligations towards the person concerned arising out of the prohibition of refoulement of refugees. The Draft Articles on the Expulsion of Aliens apply in general to “the expulsion of all aliens present in the territory of the expelling State, with no distinction between the various categories of persons involved, for example, aliens lawfully present in the territory of the expelling State, aliens unlawfully present, displaced persons, asylum seekers, persons granted asylum and stateless persons” (see paragraph 2 of the commentary on Article 1 of the Draft Articles). Hence, they cover the expulsion both of aliens who are lawfully present and of “those unlawfully present in the territory of the ... State” (see paragraph 3 of the commentary). 182. Meanwhile, EU law, to which several of the intervening Governments referred, enshrines in primary law the right to asylum and the right to international protection (Article 78 TFEU and Article 18 of the Charter of Fundamental Rights, cited at paragraphs 43 and 42 above), and also the prohibition of collective expulsion and the principle of non-refoulement (Article 19 of the Charter, cited at paragraph 42 above). As regards third-country nationals who are staying illegally on the territory of a member State, the Return Directive (2008/115) sets out the standards and procedures governing their return, “in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations” (Article 1). Furthermore, the Schengen Borders Code stipulates that third-country nationals who do not fulfil all the entry conditions are to be refused entry to the territories of the member States, by means of a substantiated decision, without prejudice to the special provisions concerning the right to asylum and international protection (Articles 13 and 14 of the Schengen Borders Code applicable at the relevant time, corresponding to the new Articles 14 and 15 of the codified version of Regulation (EU) 2016/399 of 9 March 2016 (the Schengen Borders Code), and Article 2 of Directive 2008/115, cited at paragraphs 45, 46 and 47 above). Moreover, member States may decide not to apply the Return Directive to third-country nationals who are subject to such a refusal of entry, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a member State and who have not subsequently obtained an authorisation or a right to stay in that member State (Article 2 § 2 (a) of the Return Directive). In such cases, the member States may apply simplified national return procedures, subject to compliance with the conditions laid down in Article 4 § 4 of the Directive, including the principle of non-refoulement (see the CJEU judgment in the case of Affum, cited above, §§ 72-74). 183. Furthermore, under Article 14 §§ 4 and 5 of Directive 2011/95 (the Qualification Directive) the principle of non-refoulement, and certain rights enshrined in EU law on the basis of the Geneva Convention (Articles 3, 4, 16, 22, 31, 32 and 33 of that Convention) are applicable, unlike the other rights enumerated in those two instruments, to any person present in the territory of a member State who fulfils the material conditions to be considered a refugee, even if he or she has not formally obtained refugee status or has had it withdrawn. It appears that the enjoyment of these rights is therefore not conditional on having already obtained refugee status, but derives from the sole fact that the person concerned satisfies the material conditions referred to in Article 1 § A (2) of the Geneva Convention and is present in the territory of a member State (see the CJEU judgment in the case of M. v. Ministerstvo vnitra and Others, cited above, §§ 84, 85, 90 and 105). Moreover, under Articles 4 and 19 § 2 of the Charter, EU law does not permit member States to derogate from the principle of non-refoulement under Article 33 § 2 of the Geneva Convention (ibid., § 95). 184. For its part, the Court has not hitherto ruled on the distinction between the non-admission and expulsion of aliens, and in particular of migrants or asylum-seekers, who are within the jurisdiction of a State that is forcibly removing them from its territory. For persons in danger of ill ‑ treatment in the country of destination, the risk is the same in both cases, namely that of being exposed to such treatment. Examination of the international and EU law materials referred to above supports the Court’s view that the protection of the Convention, which is to be interpreted autonomously (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009; Del Río Prada v. Spain [GC], no. 42750/09, § 81, ECHR 2013; and Allen v. the United Kingdom [GC], no. 25424/09, § 95, ECHR 2013) cannot be dependent on formal considerations such as whether the persons to be protected were admitted to the territory of a Contracting State in conformity with a particular provision of national or European law applicable to the situation in question. The opposite approach would entail serious risks of arbitrariness, in so far as persons entitled to protection under the Convention could be deprived of such protection on the basis of purely formal considerations, for instance on the grounds that, not having crossed the State’s border lawfully, they could not make a valid claim for protection under the Convention. States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions cannot go so far as to render ineffective the protection afforded by the Convention, and in particular by Article 3 (see, mutatis mutandis, M.S.S. v. Belgium and Greece, cited above, § 216, and Amuur v. France, 25 June 1996, § 43, Reports 1996 ‑ III). 185. These reasons have led the Court to interpret the term “expulsion” in the generic meaning in current use (“to drive away from a place”) (see Khlaifia and Others, cited above, § 243, and Hirsi Jamaa and Others, cited above, § 174), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border. The Court has also used the term in the context of Articles 3 and 13 of the Convention (see, for example, J.K. and Others v. Sweden, no. 59166/12, §§ 78-79, 4 June 2015, and Saadi, cited above, §§ 95, 124-25), and especially with regard to the removal of aliens at the border (see Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 54-58, ECHR 2007 ‑ II; Kebe and Others v. Ukraine, no. 12552/12, § 87, 12 January 2017; M.A. and Others v. Lithuania, cited above, §§ 102-03; and Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 123-28, 21 November 2019). 186. As a result, Article 3 of the Convention and Article 4 of Protocol No. 4 have been found to apply to any situation coming within the jurisdiction of a Contracting State, including to situations or points in time where the authorities of the State in question had not yet examined the existence of grounds entitling the persons concerned to claim protection under these provisions (see, among other authorities, Hirsi Jamaa and Others, cited above, §§ 180 et seq., and M.A. and Others v. Lithuania, cited above, § 70). In the Court’s view, this approach is confirmed by the International Law Commission’s Draft Articles on the Expulsion of Aliens, which, with regard to refugees, equate their non-admission to a State’s territory with their return ( refoulement ) and treat as a refugee any person who applies for international protection, while his or her application is under consideration (see Articles 2 and 6 of the Draft Articles and the commentary thereto, cited at paragraph 65 above; see also the Special Rapporteur’s second report on the expulsion of aliens, cited at paragraph 66 above). 187. In the Court’s view these considerations, which formed the basis for its recent judgments in Hirsi Jamaa and Others, Sharifi and Others and Khlaifia and Others (all cited above), concerning applicants who had attempted to enter a State’s territory by sea, have lost none of their relevance. There is therefore no reason to adopt a different interpretation of the term “expulsion” with regard to forcible removals from a State’s territory in the context of an attempt to cross a national border by land. Nevertheless, it should be specified that this approach follows from the autonomous interpretation of Convention terms. 188. The Court would also emphasise that neither the Convention nor its Protocols protect, as such, the right to asylum. The protection they afford is confined to the rights enshrined therein, including particularly the rights under Article 3. That provision prohibits the return of any alien who is within the jurisdiction of one of the Contracting States for the purposes of Article 1 of the Convention to a State in which he or she faces a real risk of being subjected to inhuman or degrading treatment or even torture. In that respect, it embraces the prohibition of refoulement under the Geneva Convention. (b) Application to the present case 189. In the instant case the Government argued that the applicants had not been subjected to an expulsion. It was true that they had come under the control of the border guards after crossing two fences, but in any event they had not been given leave to enter Spanish territory lawfully. For an expulsion to occur, the person concerned had to have first been admitted to the territory from which he or she was expelled. 190. The Court is in no doubt that the applicants were apprehended on Spanish territory by Spanish border guards and were therefore within Spain’s jurisdiction within the meaning of Article 1 of the Convention. The Court refers in that regard to the considerations it outlined in reply to the Government’s preliminary objection that Spain lacked jurisdiction in the present case (see paragraphs 104 et seq. above). Those considerations were based on the fact that a State may not unilaterally claim exemption from the Convention, or modify its effects, in respect of part of its territory, even for reasons it considers legitimate. The Court observes in that regard that, in accordance with Article 27 of the Vienna Convention, the provisions of internal law may not be invoked as justification for failure to perform a treaty (see paragraph 61 above). 191. It is further beyond dispute that the applicants were removed from Spanish territory and forcibly returned to Morocco, against their will and in handcuffs, by members of the Guardia Civil. There was therefore an “expulsion” within the meaning of Article 4 of Protocol No. 4. Accordingly, that provision is applicable in the present case. The Court therefore dismisses the Government’s preliminary objection on this point and declares the applications admissible in this regard. 2. Merits 192. It must now be ascertained whether the expulsion was “collective” within the meaning of Article 4 of Protocol No. 4. (a) General principles 193. The Court points to its case-law concerning Article 4 of Protocol No. 4, as set out, with regard to migrants and asylum-seekers, in the judgments in Hirsi Jamaa and Others, Sharifi and Others, and Khlaifia and Others (all cited above). According to that case-law, an expulsion is deemed to be “collective” for the purposes of Article 4 of Protocol No. 4 if it compels aliens, as a group, to leave a country, “except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group” (see Khlaifia and Others, cited above, §§ 237 et seq.; Georgia v. Russia (I), cited above, § 167; Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; Davydov v. Estonia (dec.), no. 16387/03, 31 May 2005; Sultani v. France, no. 45223/05, § 81, ECHR 2007-IV (extracts); and Ghulami v. France (dec.), no. 45302/05, 7 April 2009). 194. As to whether an expulsion is “collective” within the meaning of Article 4 of Protocol No. 4, the Court reiterates its case-law according to which, when it uses the adjective “collective” to describe an expulsion, it is referring to a “group”, without thereby distinguishing between groups on the basis of the number of their members (see Georgia v. Russia (I), cited above, § 167; Sultani, cited above, § 81; Ghulami, cited above; and Khlaifia and Others, cited above, § 237; see also Article 9 § 1 of the International Law Commission’s Draft Articles on the Expulsion of Aliens, which provides that “collective expulsion means expulsion of aliens, as a group”, and the accompanying commentary, cited in Khlaifia and Others (cited above, §§ 46-47, and at paragraph 65 above)). The group does not have to comprise a minimum number of individuals below which the collective nature of the expulsion would be called into question. Thus, the number of persons affected by a given measure is irrelevant in determining whether or not there has been a violation of Article 4 of Protocol No. 4. 195. Moreover, the Court has never hitherto required that the collective nature of an expulsion should be determined by membership of a particular group or one defined by specific characteristics such as origin, nationality, beliefs or any other factor, in order for Article 4 of Protocol No. 4 to come into play. The decisive criterion in order for an expulsion to be characterised as “collective” is the absence of “a reasonable and objective examination of the particular case of each individual alien of the group” (see Khlaifia and Others, cited above, §§ 237 et seq., with further references). 196. The cases of Hirsi Jamaa and Others and Sharifi and Others (cited above) concerned the removal to Libya and Greece respectively of a group of people who had been intercepted together at sea, without their identity or individual circumstances being taken into account. In Hirsi Jamaa and Others (§ 185), the applicants had not undergone any identity checks and the authorities had merely put the migrants, who had been intercepted on the high seas, onto military vessels to take them back to the Libyan coast. In Sharifi and Others (§§ 214-25), the Court found that the migrants, who had been intercepted in Adriatic ports, had been subjected to “automatic returns” to Greece and had been deprived of any effective possibility of seeking asylum. In both cases, many of the applicants were asylum-seekers whose complaint concerning the respondent State, under Article 3 of the Convention, was that they had not been afforded an effective possibility of challenging their return. The applicants’ main allegation in those cases, therefore, was that their return to Libya and Greece respectively would clearly expose them to a “real risk” of ill ‑ treatment or of being repatriated to Eritrea, Somalia and Afghanistan (see Sharifi and Others, cited above, §§ 135, 180 and 215, and Hirsi Jamaa and Others, cited above, §§ 131 and 158). 197. In the most recent case, that of Khlaifia and Others, the applicants had arrived in Italy across the Mediterranean and had been returned to Tunisia by the Italian authorities. In the proceedings before the Court, they did not allege a violation of Article 3 on account of that expulsion. The Grand Chamber, referring to Hirsi Jamaa and Others (cited above, § 177) and Sharifi and Others (cited above, § 210), reiterated that Article 4 of Protocol No. 4 established a set of procedural conditions aimed at preventing States from being able to remove aliens without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority (see Khlaifia and Others, cited above, § 238, and Andric, cited above). It found that, in order to determine whether there had been a sufficiently individualised examination, it was necessary to have regard to the particular circumstances of the expulsion and to the “general context at the material time” (see Khlaifia and Others, cited above, § 238; Georgia v. Russia (I), cited above, § 171; and Hirsi Jamaa and Others, cited above, § 183). 198. It is apparent from this case-law that Article 4 of Protocol No. 4, in this category of cases, is aimed at maintaining the possibility, for each of the aliens concerned, to assert a risk of treatment which is incompatible with the Convention – and in particular with Article 3 – in the event of his or her return and, for the authorities, to avoid exposing anyone who may have an arguable claim to that effect to such a risk. For that reason, Article 4 of Protocol No. 4 requires the State authorities to ensure that each of the aliens concerned has a genuine and effective possibility of submitting arguments against his or her expulsion (see Hirsi Jamaa and Others, cited above, § 177; Sharifi and Others, cited above, § 210; and Khlaifia and Others, cited above, §§ 238 and 248). 199. In this context, the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion, if each person concerned has been given the opportunity to put arguments against his or her expulsion to the competent authorities on an individual basis (see Khlaifia and Others, cited above, § 239; see also M.A. v. Cyprus, no. 41872/10, §§ 246 and 254, ECHR 2013 (extracts); Sultani, cited above, § 81; Hirsi Jamaa and Others, cited above, § 184; and Georgia v. Russia (I), cited above, § 167). However, Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances, as the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State (see Khlaifia and Others, cited above, § 248). In Khlaifia and Others, the applicants’ representatives were unable to indicate “the slightest factual or legal ground which, under international or national law, could have justified their clients’ presence on Italian territory and preclude[d] their removal”. This called into question the usefulness of an individual interview in that case (ibid., § 253). 200. Lastly, the applicant’s own conduct is a relevant factor in assessing the protection to be afforded under Article 4 of Protocol No. 4. According to the Court’s well-established case-law, there is no violation of Article 4 of Protocol No. 4 if the lack of an individual expulsion decision can be attributed to the applicant’s own conduct (see Khlaifia and Others, cited above, § 240, and Hirsi Jamaa and Others, cited above, § 184; see also M.A. v. Cyprus, cited above, § 247; Berisha and Haljiti, cited above; and Dritsas and Others, cited above). In the last two cases, it was the lack of active cooperation with the available procedure for conducting an individual examination of the applicants’ circumstances which prompted the Court to find that the Government could not be held responsible for the fact that no such examination was carried out. 201. In the Court’s view, the same principle must also apply to situations in which the conduct of persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, is such as to create a clearly disruptive situation which is difficult to control and endangers public safety. In this context, however, in assessing a complaint under Article 4 of Protocol No. 4, the Court will, importantly, take account of whether in the circumstances of the particular case the respondent State provided genuine and effective access to means of legal entry, in particular border procedures. Where the respondent State provided such access but an applicant did not make use of it, the Court will consider, in the context in issue and without prejudice to the application of Articles 2 and 3, whether there were cogent reasons not to do so which were based on objective facts for which the respondent State was responsible. (b) Application to the present case (i) The fact that there were only two applicants 202. In the present case the Court observes at the outset that the Government disputed the “collective” nature of the expulsion to which the applicants had allegedly been subjected, because the case concerned only two individuals. The Court notes in that regard that the applicants in the present case were part of a large group of aliens acting simultaneously and that they were subjected to the same treatment as the other members of the group. 203. Irrespective of this factual consideration, the Court reiterates its case-law according to which the number of persons affected by a given measure is irrelevant in determining whether or not there has been a violation of Article 4 of Protocol No. 4. Moreover, the decisive criterion in order for an expulsion to be characterised as “collective” has always been the absence of “a reasonable and objective examination of the particular case of each individual alien of the group” (see paragraph 193 above). The Court sees no reason to reach a different conclusion in the present case and therefore rejects the Government’s arguments in this regard. (ii) The applicants’ conduct (α) The parties’ submissions 204. The Government further alleged that the applicants’ removal had been the consequence of their own “culpable conduct” for the purposes of the Court’s settled case-law. The applicants had tried to enter Spanish territory in an unauthorised manner (see section 25 of the LOEX and paragraph 32 above) and had in no way demonstrated that they had been incapable of using the numerous legal procedures available in order to obtain permission to cross the border into Spain. The Government argued that it was open to any alien wishing to enter Spain in order to claim asylum or international protection in general to submit such a claim at the Beni Enzar border crossing point (section 21 of Law no. 12/2009, cited at paragraph 34 above) or at the Spanish embassy in Rabat or the Spanish consulates in Morocco (in particular in Nador), or a Spanish embassy or consulate in another country (section 38 of Law no. 12/2009, cited at paragraph 34 above). Hence the applicants could – if they had needed to claim asylum or obtain international protection on other grounds – have submitted such a claim to the aforementioned institutions (section 38 of Law no. 12/2009, see paragraph 34 above). Furthermore, in the proceedings following their eventual entry into Spain in 2015, the applicants had not demonstrated the existence of any risks to which they had been exposed as a result of their removal to Morocco or to their country of origin. 205. The applicants contested the Government’s assertion that the respondent State had afforded them genuine and effective legal options for obtaining lawful entry into Spain. They simply stressed the impossibility of gaining access to most of the locations referred to by the Government, especially for individuals from sub-Saharan Africa. (ß) The Court’s assessment 206. The Court notes at the outset that the applicants in the present case were members of a group comprising numerous individuals who attempted to enter Spanish territory by crossing a land border in an unauthorised manner, taking advantage of their large numbers and in the context of an operation that had been planned in advance. It further observes that the applicants’ complaints under Article 3 were declared inadmissible by the Chamber. 207. In the present case the applicants were not identified, as no written procedure was undertaken on 13 August 2014 to examine their individual circumstances. Their return to Morocco was therefore a de facto individual but immediate handover, carried out by the Spanish border guards on the sole basis of the Guardia Civil ’s operations protocol (see paragraph 37 above). 208. The Court notes the Government’s argument that the applicants had engaged in “culpable conduct” by circumventing the legal procedures that existed for entry into Spain. The question therefore arises whether such procedures existed at the material time; whether they afforded the applicants a genuine and effective opportunity of submitting reasons – assuming that such reasons existed – against their handover to the Moroccan authorities; and, if this was the case, whether the applicants made use of them. 209. With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen Area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case, the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4 § 1 of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. In the absence of appropriate arrangements, the resulting possibility for States to refuse entry to their territory is liable to render ineffective all the Convention provisions designed to protect individuals who face a genuine risk of persecution. 210. However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points (see also Article 6 of the EU Procedures Directive, paragraph 49 above). Consequently, they may refuse entry to their territory to aliens, including potential asylum-seekers, who have failed, without cogent reasons (as described in paragraph 201 above), to comply with these arrangements by seeking to cross the border at a different location, especially, as happened in this case, by taking advantage of their large numbers and using force. 211. The Court must therefore ascertain whether the possibilities which, in the Government’s submission, were available to the applicants in order to enter Spain lawfully, in particular with a view to claiming protection under Article 3, existed at the material time and, if so, whether they were genuinely and effectively accessible to the applicants. In the event that this was the case and the applicants did not make use of these legal procedures, but instead crossed the border in an unauthorised manner (in this instance taking advantage of their large numbers and using force), only the absence of cogent reasons (as described in paragraph 201 above) preventing the use of these procedures could lead to this being regarded as the consequence of the applicants’ own conduct, justifying the fact that the Spanish border guards did not identify them individually. 212. In this regard, the Court notes that Spanish law afforded the applicants several possible means of seeking admission to the national territory, either by applying for a visa (see paragraph 115 above) or by applying for international protection, in particular at the Beni Enzar border crossing point, but also at Spain’s diplomatic and consular representations in their countries of origin or transit or else in Morocco (see sections 21 and 38 of Law no. 12/2009, cited at paragraph 34 above, and Articles 4, 16 and 29 § 4 of Royal Decree no. 203/1995, cited at paragraph 35 above). The availability and actual accessibility of these legal avenues in the applicants’ case were discussed in detail in the Grand Chamber proceedings, including at the hearing. 213. It has been established that on 1 September 2014, shortly after the events in the present case, the Spanish authorities set up an office for registering asylum claims (the Special International Protection Unit), open around the clock, at the Beni Enzar international border crossing point. According to the report of the Melilla police directorate (see paragraph 128 above), even before the setting-up of an asylum registration office on that date, a legal avenue to that effect had been established under section 21 of Law no. 12/2009 (see paragraph 34 above). The Government stated that on this basis, twenty-one asylum applications had been lodged between 1 January and 31 August 2014 in Melilla, including six asylum applications lodged at the Beni Enzar border crossing point, with the asylum-seekers being escorted to the Melilla police station in order for them to lodge a formal application. The people in question came from Algeria, Burkina Faso, Cameroon, Congo, Côte d’Ivoire and Somalia. 214. The Court notes that the applicants and the third-party interveners did not convincingly challenge the accuracy of the statistics submitted by the Government on this issue. Neither did they challenge the statement by the Government according to which “before the Special International Protection Unit was built and deployed at [Beni Enzar], the applicant for asylum was informed of his rights, with the help of an interpreter and assisted by a free of charge specialized lawyer assigned by the Bar. He/she was then driven to an open Centre for the Temporary Stay of Migrants, where their basic needs were taken care of too” (see paragraph 128 above). The Court therefore has no reason to doubt that even prior to the setting-up on 1 September 2014 of the Special International Protection Unit at Beni Enzar, there had not only been a legal obligation to accept asylum applications at this border crossing point but also an actual possibility to submit such applications. 215. The uncontested fact that, according to the Government’s statistics, 404 asylum applications were submitted at Beni Enzar between 1 September and 31 December 2014 – thus, many more than the six applications in the first eight months of 2014 – does not alter that conclusion. As indicated by the Commissioner for Human Rights of the Council of Europe, referring to the 2014 annual report of the Spanish Ombudsman, those 404 applications were all submitted by Syrian refugees at a time when the Syrian crisis had intensified. This is confirmed by Annex 14 of the Government’s submissions, according to which, owing to the notable increase in the number of applicants for international protection at the end of 2014, and in order to facilitate the processing of asylum applications, the number of national police officers in Beni Enzar and Tarajal was increased, and the officers received the appropriate training to deal with the asylum applications that were submitted. Thus, the higher number of applications from 1 September 2014 onwards would appear to be primarily the result of an increased number of requests for protection by Syrian nationals in that period and, as such, does not call into question the accessibility of Beni Enzar prior to 1 September 2014. 216. This conclusion would appear to be confirmed by the fact that, according to the statistics, the number of applications for asylum from persons from sub-Saharan Africa did not increase after 1 September 2014, unlike the number of applications from Syrian nationals. Indeed, not a single asylum request from persons from sub-Saharan Africa was submitted at Beni Enzar between 1 September and 31 December 2014 or in the whole of 2015, while only two such requests were submitted in 2016 and none in 2017. These figures were also relied on by the applicants in their pleadings before the Grand Chamber. 217. Consequently, the mere fact – not disputed by the Government ‑ that only very few asylum requests were submitted at Beni Enzar prior to 1 September 2014 (see paragraph 213 above) does not allow the conclusion that the respondent State did not provide genuine and effective access to this border crossing point. The applicants’ general allegation in their pleadings before the Grand Chamber that “at the material time, it was not possible for anyone to claim asylum at the Beni Enzar border post”, is insufficient to invalidate this conclusion. 218. The Court will next ascertain whether the applicants had cogent reasons (as described in paragraph 201 above) for not using these border procedures at the Beni Enzar border crossing point. In this regard the Court observes that several third parties to the proceedings before the Grand Chamber argued that physically approaching the Beni Enzar border crossing point was, in practice, impossible or very difficult for persons from sub ‑ Saharan Africa staying in Morocco. However, the various reports submitted to that effect, particularly by UNHCR and the Commissioner for Human Rights of the Council of Europe, are not conclusive as to the reasons and factual circumstances underlying these allegations. Some of them mention racial profiling or severe passport checks on the Moroccan side. However, none of these reports suggests that the Spanish government was in any way responsible for this state of affairs. 219. As regards the findings of Mr Boček in his report from 2018 to the effect that the Guardia Civil would notify the Moroccan authorities of any movements at the Melilla fence, with the result that the latter would prevent people in Moroccan territory from jumping the fence, those findings would appear to apply only to unauthorised border crossings (see paragraph 58 above). There is nothing to suggest that a similar situation prevailed at official border crossing points, including Beni Enzar. 220. As regards the applicants in the present case, in the Grand Chamber proceedings they at first did not even allege that they had ever tried to enter Spanish territory by legal means, referring to the aforementioned difficulties only in the abstract. In their second set of observations to the Grand Chamber they still denied any link between their claim under Article 4 of Protocol No. 4 and a possible asylum claim. Only at the hearing before the Grand Chamber did they allege that they had themselves attempted to approach Beni Enzar but had been “chased by Moroccan officers”. Quite apart from the doubts as to the credibility of this allegation arising from the fact that it was made at a very late stage of the procedure, the Court notes that at no point did the applicants claim in this context that the obstacles allegedly encountered, should they be confirmed, were the responsibility of the Spanish authorities. Hence, the Court is not persuaded that the applicants had the required cogent reasons (as described in paragraph 201 above) for not using the Beni Enzar border crossing point at the material time with a view to submitting reasons against their expulsion in a proper and lawful manner. 221. The Court stresses that the Convention is intended to guarantee to those within its jurisdiction not rights that are theoretical and illusory, but rights that are practical and effective (see paragraph 171 above). This does not, however, imply a general duty for a Contracting State under Article 4 of Protocol No. 4 to bring persons who are under the jurisdiction of another State within its own jurisdiction. In the present case, even assuming that difficulties existed in physically approaching this border crossing point on the Moroccan side, no responsibility of the respondent State for this situation has been established before the Court. 222. This finding suffices for the Court to conclude that there has been no violation of Article 4 of Protocol No. 4 in the present case. The Court notes the Government’s submission to the effect that, in addition to being afforded genuine and effective access to Spanish territory at the Beni Enzar border crossing point, the applicants also had access to Spanish embassies and consulates where, under Spanish law, anyone could submit a claim for international protection. As the Court has already found that the respondent State provided genuine and effective access to Spanish territory at Beni Enzar at the material time, it is not required to take a position in the present case on whether or to what extent such embassies and consulates would have brought the applicants within the jurisdiction of Spain, if they had sought international protection there, and whether these embassies and consulates would thus also have been capable of providing them with the required level of access. However, in the light of the Government’s reliance on these procedures and the detailed submissions received, the Court will proceed to consider this issue. 223. In this context the Court notes that under section 38 of Law no. 12/2009, Spanish ambassadors were already required at the material time to arrange for the transfer to Spain of persons who were shown to be in need of protection (see paragraph 34 above). It will therefore examine the protective effect of section 38, which is disputed between the parties. 224. At the hearing before the Grand Chamber, the applicants referred to a 2016 report of the Asylum Information Database, according to which this section of Law no. 12/2009 “still lack[ed] specific implementing legislation to enable it to become a reality”. However, the Government demonstrated that this allegation was mistaken, pointing out that Article 2 § 2 of the Civil Code provided that Royal Decree no. 203/1995 (cited in paragraph 35 above), laying down implementing arrangements for the previous version of the Law on asylum, was still in force. That decree provided for a specific procedure enabling the ambassadors to establish whether asylum applications submitted at the Spanish embassies and consulates were genuine and, if appropriate, to arrange for the transfer to Spain of the persons concerned, by means of an urgent admission in the event of a high risk in a third country. It also provided that an administrative decision had to be issued within six months and was subject to judicial review. The applicability of this procedure was confirmed by a circular letter of 20 November 2009, sent by the government to all Spanish ambassadors and containing instructions regarding the arrangements for such transfers. This circular letter provides that “if in the exercise of his or her duties the ambassador considers that ‘there is a risk to [the asylum ‑ seeker’s] physical integrity’, he or she may secure the person’s transfer to Spain (this may entail issuing a visa and a one-way airline ticket to Spain, subject to prior approval by the Ministry)” (see paragraph 38 above). The applicants’ assertion that section 38 of Law no. 12/2009 was not applicable at the material time owing to the absence of an implementing decree is therefore erroneous. 225. In this connection the Government also presented specific figures concerning the asylum applications registered in 2014 at Spanish embassies and consulates. According to these figures, which were not contested by the applicants, 1,308 asylum applications were submitted at Spanish embassies and consulates between 2014 and 2018, including 346 in 2014. In that year, eighteen asylum applications were submitted by nationals of Côte d’Ivoire at the Spanish embassies in Abidjan and Bamako. All nine asylum applications submitted at the Spanish embassy in Rabat in those five years were made by Moroccan nationals. Moreover, only four of them were submitted in 2014. The applicants, for their part, did not contest the actual accessibility of the Spanish embassies and consulates, including the Spanish embassy in Rabat and the Spanish consulate in Nador, or the possibility for themselves or other third-country nationals to apply for international protection there. 226. The Court is aware of the limited powers of the Spanish ambassadors in the application of the special procedure under section 38 of Law no. 12/2009 and of the time-limit of six months for their decision, circumstances which may mean that not all asylum-seekers are provided with immediate protection. However, in the present case these circumstances were not decisive, as in its inadmissibility decision of 7 July 2015 the Court dismissed the applicants’ complaint under Article 3 concerning their fear of ill-treatment in Morocco and declared it manifestly ill-founded. There is therefore no indication that the applicants, had they made use of the procedure under section 38, would have been exposed, pending the outcome of that procedure, to any risk of ill-treatment in Morocco, where they had been living for a considerable time (see paragraphs 22-23 above). 227. Accordingly, the Court is not persuaded that these additional legal avenues existing at the time of the events were not genuinely and effectively accessible to the applicants. It observes in that connection that the Spanish consulate in Nador is only 13.5 km from Beni Enzar and hence from the location of the storming of the fences on 13 August 2014. The applicants, who stated that they had stayed in the Gurugu camp for two years (in N.D.’s case) and for one year and nine months (in N.T.’s case), could easily have travelled there had they wished to apply for international protection. They did not give any explanation to the Court as to why they did not do so. In particular, they did not even allege that they had been prevented from making use of these possibilities. 228. Lastly, the applicants likewise did not dispute the genuine and effective possibility of applying for a visa at other Spanish embassies, either in their countries of origin or in one of the countries they had travelled through since 2012. In N.D.’s case, a special treaty between Spain and Mali even afforded an additional possibility of obtaining a special working visa (see paragraph 115 above). At the hearing before the Grand Chamber, the Government gave concrete figures showing that a considerable number of working visas had been issued to citizens of Mali and Côte d’Ivoire in the relevant period. Those statistics were not contested by the applicants either. 229. However that may be, for the reasons set out above (see paragraphs 213-20), the Court is not convinced that the respondent State did not provide genuine and effective access to procedures for legal entry into Spain, in particular by an application for international protection at the Beni Enzar border post, and that the applicants had cogent reasons based on objective facts for which the respondent State was responsible not to make use of those procedures. 230. In any event, the Court observes that the applicants’ representatives, both in their written observations and at the Grand Chamber hearing, were unable to indicate the slightest concrete factual or legal ground which, under international or national law, would have precluded the applicants’ removal had they been registered individually (see, mutatis mutandis, Khlaifia and Others, § 253; however, see also the views of the Committee on the Rights of the Child cited at paragraph 68 above). 231. In the light of these observations, the Court considers that it was in fact the applicants who placed themselves in jeopardy by participating in the storming of the Melilla border fences on 13 August 2014, taking advantage of the group’s large numbers and using force. They did not make use of the existing legal procedures for gaining lawful entry to Spanish territory in accordance with the provisions of the Schengen Borders Code concerning the crossing of the Schengen Area’s external borders (see paragraph 45 above). Consequently, in accordance with its settled case-law, the Court considers that the lack of individual removal decisions can be attributed to the fact that the applicants, if they indeed wished to assert rights under the Convention, did not make use of the official entry procedures existing for that purpose, and was thus a consequence of their own conduct (see references in paragraph 200 above). Accordingly, there has been no violation of Article 4 of Protocol No. 4. 232. However, it should be specified that this finding does not call into question the broad consensus within the international community regarding the obligation and necessity for the Contracting States to protect their borders – either their own borders or the external borders of the Schengen Area, as the case may be – in a manner which complies with the Convention guarantees, and in particular with the obligation of non ‑ refoulement. In this regard the Court notes the efforts undertaken by Spain, in response to recent migratory flows at its borders, to increase the number of official border crossing points and enhance effective respect for the right to access them, and thus to render more effective, for the benefit of those in need of protection against refoulement, the possibility of gaining access to the procedures laid down for that purpose. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 OF PROTOCOL No. 4 233. The applicants complained of the lack of an effective remedy with suspensive effect by which to challenge their immediate return to Morocco. They relied on Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4. Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 234. The Government observed that the right to an effective domestic remedy was a procedural right which had to be linked to a possible violation of a substantive right under the Convention or the Protocols thereto. In their view, there were no grounds for finding a violation of Article 13 of the Convention. 235. The applicants, for their part, submitted that they had not had access to a domestic remedy enabling them to complain of the collective nature of the expulsions of 13 August 2014; such a remedy would have to have been available and effective and have suspensive effect. 236. In their view, the summary and automatic expulsions of which they had been the victims had been in direct breach of the Spanish legislation applicable at the relevant time. The procedure that should have been followed was the removal procedure provided for by section 58(3)(b) of the LOEX and Article 23 of Royal Decree no. 557/2011 (see paragraphs 32 and 36 above), which provides that border police officials who apprehended an alien had to escort him or her to the police station with a view to his or her identification and the possible commencement of a removal procedure. Any expulsion order issued on completion of that stage was subject to a judicial appeal in proceedings in which the person concerned had the right to be assisted free of charge by a lawyer and an interpreter. 237. The applicants further submitted that, in so far as no formal individual decision had been taken in the present case and in the absence of any identification, information or procedure, they had been deprived of any domestic remedy in respect of their expulsion, including the remedies provided for by domestic and EU law. In their view, this amounted to a violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4. A. Admissibility 238. The Court considers that this complaint raises complex issues of law and fact which cannot be determined without an examination of the merits. It follows that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds and that no other preliminary objection was raised by the Government in that regard. It must therefore be declared admissible. B. Merits 1. The Chamber judgment 239. The Chamber considered that this complaint was “arguable” for the purposes of Article 13 of the Convention (see Hirsi Jamaa and Others, cited above, § 201) and that the applicants had been deprived of any remedy enabling them to lodge their complaint under Article 4 of Protocol No. 4 with a competent authority and to obtain a thorough and rigorous assessment of their requests before being sent back. The Chamber therefore held that there had been a violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4 to the Convention. 2. The Court’s assessment 240. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. 241. In so far as the applicants complained of the lack of an effective remedy by which to challenge their expulsion on the grounds of its allegedly collective nature, the Court notes that, although Spanish law provided a possibility of appeal against removal orders at the border (see paragraphs 32 et seq. above), the applicants themselves were also required to abide by the rules for submitting such an appeal against their removal. 242. As it stated previously in examining the complaint under Article 4 of Protocol No. 4 (see paragraph 231 above), the Court considers that the applicants placed themselves in an unlawful situation by deliberately attempting to enter Spain by crossing the Melilla border protection structures on 13 August 2014 as part of a large group and at an unauthorised location. They thus chose not to use the legal procedures which existed in order to enter Spanish territory lawfully, thereby failing to abide by the relevant provisions of the Schengen Borders Code regarding the crossing of the external borders of the Schengen Area (see paragraph 45 above) and the domestic legislation on the subject. In so far as the Court has found that the lack of an individualised procedure for their removal was the consequence of the applicants’ own conduct in attempting to gain unauthorised entry at Melilla (see paragraph 231 above), it cannot hold the respondent State responsible for not making available there a legal remedy against that same removal. 243. It follows that the lack of a remedy in respect of the applicants’ removal does not in itself constitute a violation of Article 13 of the Convention, in that the applicants’ complaint regarding the risks they were liable to face in the destination country was dismissed at the outset of the procedure. 244. Accordingly, there has been no violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4. | The Grand Chamber held, unanimously, that there had been no violation of Article 4 of Protocol No. 4 to the Convention. It noted in particular that the applicants had in fact placed themselves in an unlawful situation when they had deliberately attempted to enter Spain on 13 August 2014 by crossing the Melilla border protection structures as part of a large group and at an unauthorised location, taking advantage of the group’s large numbers and using force. They had thus chosen not to use the legal procedures which existed in order to enter Spanish territory lawfully. Consequently, the Court found that the lack of individual removal decisions could be attributed to the fact that the applicants – assuming that they had wished to assert rights under the Convention – had not made use of the official entry procedures existing for that purpose, and that it had thus been a consequence of their own conduct. The Grand Chamber also held that there had been no violation of Article 13 (right to an effective remedy) of the Convention taken together with Article 4 of Protocol No. 4. In this regard, the Court considered that, in so far as it had found that the lack of an individualised procedure for their removal had been the consequence of the applicants’ own conduct, it could not hold the respondent State responsible for the lack of a legal remedy in Melilla enabling them to challenge that removal. |
302 | Prevention of terrorism | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law 1. Federal Constitution 65. Article 190 (“Applicable law”) of the Federal Constitution provides: “The Federal Court and the other authorities shall be required to apply federal statutes and international law.” 2. Ordinance of 2 October 2000 instituting measures against persons and entities associated with Osama bin Laden, the group “al ‑ Qaeda” or the Taliban (“the Taliban Ordinance”) 66. The Ordinance of 2 October 2000, instituting measures against persons and entities associated with Osama bin Laden, the group “al-Qaeda” or the Taliban, has been amended several times. The relevant provisions read as follows, in the version that was in force in the period under consideration in the present case, and in particular at the time when the Federal Court delivered its judgment (14 November 2007). Article 1 – Ban on supply of military equipment and similar goods “1. The supply, sale or brokerage of arms of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts or accessories for the above-mentioned, to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, shall be prohibited. ... 3. The supply, sale or brokerage of technical advice, assistance and training related to military activities, to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, shall be prohibited. 4. Paragraphs 1 and 3 above shall apply only to the extent that the Property Regulation Act of 13 December 1996, the Federal Act on War Materiel of 13 December 1996 and their respective implementing ordinances are not applicable. ...” Article 3 – Freezing of assets and economic resources “1. Assets and economic resources owned or controlled by the individuals, undertakings, groups or entities referred to in Annex 2 hereto shall be frozen. 2. It shall be prohibited to supply funds to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, or to make assets or economic resources available to them, directly or indirectly. 3. The State Secretariat for Economic Affairs (SECO) may exempt payments related to democratisation or humanitarian projects from the prohibitions under paragraphs 1 and 2 above. 4. The SECO may authorise, after consulting the competent services of the Federal Department of Foreign Affairs and the Federal Department of Finance, payments from blocked accounts, transfers of frozen capital assets and the release of frozen economic resources, in order to protect Swiss interests or to prevent hardship cases.” Article 4 – Mandatory declaration “1. Anyone holding or managing assets acknowledged to be covered by the freezing of assets under Article 3 § 1 hereof must immediately declare them to the SECO. 2. Any person or organisation knowing of economic resources acknowledged to be covered by the freezing of economic resources under Article 3 § 1 hereof must immediately declare them to the SECO. 3. The declaration must give the name of the beneficiary, the purpose and the amount of the assets or economic resources frozen.” Article 4a – Entry into and transit through Switzerland “1. Entry into and transit through Switzerland shall be prohibited for the individuals listed in Annex 2 hereto. 2. The Federal Office for Migration may, in conformity with the decisions of the United Nations Security Council or for the protection of Swiss interests, grant exemptions.” B. International law 1. United Nations Charter 67. The United Nations Charter was signed in San Francisco on 26 June 1945. The relevant provisions for the present case read as follows. Preamble “ We the peoples of the United Nations, determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, and for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims. Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.” Article 1 “The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; ... 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and ...” Article 24 “1. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII. ...” Article 25 “The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” 68. Chapter VII of the Charter is entitled “Action with respect to threats to the peace, breaches of the peace, and acts of aggression”. Article 39 reads as follows: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” 69. Chapter XVI is entitled “Miscellaneous Provisions”. Article 103 reads as follows: “In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” 2. Resolutions adopted by the Security Council in connection with its measures against al ‑ Qaeda and the Taliban and that are relevant to the present case 70. Resolution 1267 (1999) was adopted on 15 October 1999. It created the Sanctions Committee, consisting of all Security Council members. This Committee was in particular entrusted with the task of requesting all States to keep it informed of the steps taken to ensure the effective implementation of the measures required under the Resolution, namely the denial of permission for aircraft associated with the Taliban to use their territory for take-off or landing, unless the Sanctions Committee had approved the flight in advance for humanitarian reasons and, secondly, the freezing of the Taliban’s funds and other financial resources. The relevant parts of this Resolution read as follows. Resolution 1267 (1999) “... The Security Council, Reaffirming its previous resolutions, in particular Resolutions 1189 (1998) of 13 August 1998, 1193 (1998) of 28 August 1998 and 1214 (1998) of 8 December 1998, and the statements of its President on the situation in Afghanistan, Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage, Reiterating its deep concern over the continuing violations of international humanitarian law and of human rights, particularly discrimination against women and girls, and over the significant rise in the illicit production of opium, and stressing that the capture by the Taliban of the Consulate-General of the Islamic Republic of Iran and the murder of Iranian diplomats and a journalist in Mazar-e-Sharif constituted flagrant violations of established international law, Recalling the relevant international counterterrorism conventions and in particular the obligations of parties to those conventions to extradite or prosecute terrorists, Strongly condemning the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and planning of terrorist acts, and reaffirming its conviction that the suppression of international terrorism is essential for the maintenance of international peace and security, Deploring the fact that the Taliban continues to provide safe haven to [Osama bin Laden] and to allow him and others associated with him to operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations, Noting the indictment of [Osama bin Laden] and his associates by the United States of America for, inter alia, the 7 August 1998 bombings of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania and for conspiring to kill American nationals outside the United States, and noting also the request of the United States of America to the Taliban to surrender them for trial (S/1999/1021), Determining that the failure of the Taliban authorities to respond to the demands in paragraph 13 of Resolution 1214 (1998) constitutes a threat to international peace and security, Stressing its determination to ensure respect for its resolutions, Acting under Chapter VII of the Charter of the United Nations, ... 3. Decides that on 14 November 1999 all States shall impose the measures set out in paragraph 4 below, unless the Council has previously decided, on the basis of a report of the Secretary-General, that the Taliban has fully complied with the obligation set out in paragraph 2 above; 4. Decides further that, in order to enforce paragraph 2 above, all States shall: (a) Deny permission for any aircraft to take off from or land in their territory if it is owned, leased or operated by or on behalf of the Taliban as designated by the Committee established by paragraph 6 below, unless the particular flight has been approved in advance by the Committee on the grounds of humanitarian need, including religious obligation such as the performance of the Hajj; (b) Freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorized by the Committee on a case-by-case basis on the grounds of humanitarian need; 5. Urges all States to cooperate with efforts to fulfil the demand in paragraph 2 above, and to consider further measures against [Osama bin Laden] and his associates; 6. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council consisting of all the members of the Council to undertake the following tasks and to report on its work to the Council with its observations and recommendations: ... 7. Calls upon all States to act strictly in accordance with the provisions of this Resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraph 4 above; 8. Calls upon States to bring proceedings against persons and entities within their jurisdiction that violate the measures imposed by paragraph 4 above and to impose appropriate penalties; 9. Calls upon all States to cooperate fully with the Committee established by paragraph 6 above in the fulfilment of its tasks, including supplying such information as may be required by the Committee in pursuance of this Resolution; 10. Requests all States to report to the Committee established by paragraph 6 above within 30 days of the coming into force of the measures imposed by paragraph 4 above on the steps they have taken with a view to effectively implementing paragraph 4 above; ...” 71. By Resolution 1333 (2000), adopted on 19 December 2000, the Security Council extended the application of the sanctions provided for under Resolution 1267 (1999) to any individuals or entities identified by the Sanctions Committee as being associated with al-Qaeda or Osama bin Laden. The Resolution further required a list to be maintained for the implementation of the United Nations sanctions. The passages that are relevant to the present case read as follows. Resolution 1333 (2000) “... The Security Council, Reaffirming its previous resolutions, in particular Resolution 1267 (1999) of 15 October 1999 and the statements of its President on the situation in Afghanistan, Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage, Recognizing the critical humanitarian needs of the Afghan people, ... 8. Decides that all States shall take further measures: (a) To close immediately and completely all Taliban offices in their territories; (b) To close immediately all offices of Ariana Afghan Airlines in their territories; (c) To freeze without delay funds and other financial assets of [Osama bin Laden] and individuals and entities associated with him as designated by the Committee, including those in the [al-Qaeda] organization, and including funds derived or generated from property owned or controlled directly or indirectly by [Osama bin Laden] and individuals and entities associated with him, and to ensure that neither they nor any other funds or financial resources are made available, by their nationals or by any persons within their territory, directly or indirectly for the benefit of [Osama bin Laden], his associates or any entities owned or controlled, directly or indirectly, by [Osama bin Laden] or individuals and entities associated with him including the [al-Qaeda] organization and requests the Committee to maintain an updated list, based on information provided by States and regional organizations, of the individuals and entities designated as being associated with [Osama bin Laden], including those in the [al-Qaeda] organization; ... 12. Decides further that the Committee shall maintain a list of approved organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, including the United Nations and its agencies, governmental relief agencies providing humanitarian assistance, the International Committee of the Red Cross and non-governmental organizations as appropriate, that the prohibition imposed by paragraph 11 above shall not apply to humanitarian flights operated by, or on behalf of, organizations and governmental relief agencies on the list approved by the Committee, that the Committee shall keep the list under regular review, adding new organizations and governmental relief agencies as appropriate and that the Committee shall remove organizations and governmental agencies from the list if it decides that they are operating, or are likely to operate, flights for other than humanitarian purposes, and shall notify such organizations and governmental agencies immediately that any flights operated by them, or on their behalf, are thereby subject to the provisions of paragraph 11 above; ... 16. Requests the Committee to fulfil its mandate by undertaking the following tasks in addition to those set out in Resolution 1267 (1999): (a) To establish and maintain updated lists based on information provided by States, regional, and international organizations of all points of entry and landing areas for aircraft within the territory of Afghanistan under control by the Taliban and to notify member States of the contents of such lists; (b) To establish and maintain updated lists, based on information provided by States and regional organizations, of individuals and entities designated as being associated with [Osama bin Laden], in accordance with paragraph 8 (c) above; (c) To give consideration to, and decide upon, requests for the exceptions set out in paragraphs 6 and 11 above; (d) To establish no later than one month after the adoption of this Resolution and maintain an updated list of approved organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, in accordance with paragraph 12 above; ... 17. Calls upon all States and all international and regional organizations, including the United Nations and its specialized agencies, to act strictly in accordance with the provisions of this Resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraphs 5, 8, 10 and 11 above; ...” 72. In Resolution 1363 (2001), adopted on 30 July 2001, the Security Council decided to set up a mechanism to monitor the measures imposed by Resolutions 1267 (1999) and 1333 (2000) (“the Monitoring Group”), consisting of up to five experts selected on the basis of equitable geographical distribution. 73. In Resolution 1373 (2001), adopted on 28 September 2001 – following the events of 11 September 2001 – the Security Council decided that States should take a series of measures to combat international terrorism and ensure effective border controls in this connection. The passages that are relevant to the present case read as follows. Resolution 1373 (2001) “... The Security Council, ... 1. Decides that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities; (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons; 2. Decides also that all States shall: (a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists; (b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information; (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens; (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens; (e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts; ... 3. Calls upon all States to: ... (f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts; ...” 74. In Resolution 1390 (2002), adopted on 16 January 2002, the Security Council decided to impose a ban on entry and transit for individuals and entities concerned by the international sanctions. This Resolution also made the sanctions regime more precise and transparent, because the Sanctions Committee was requested to update regularly the list of persons concerned by the sanctions, to promulgate expeditiously such guidelines and criteria as might be necessary to facilitate the implementation of the sanctions, and to make any information it considered relevant, including the list of persons concerned, publicly available. The passages that are relevant to the present case read as follows: Resolution 1390 (2002) “... The Security Council, ... 2. Decides that all States shall take the following measures with respect to [Osama bin Laden], members of the [al-Qaeda] organization and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000) to be updated regularly by the Committee established pursuant to Resolution 1267 (1999) hereinafter referred to as ‘the Committee’; (a) Freeze without delay the funds and other financial assets or economic resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly, for such persons’ benefit, by their nationals or by any persons within their territory; (b) Prevent the entry into or the transit through their territories of these individuals, provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case by case basis only that entry or transit is justified; (c) Prevent the direct or indirect supply, sale and transfer, to these individuals, groups, undertakings and entities from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned and technical advice, assistance, or training related to military activities; ... 8. Urges all States to take immediate steps to enforce and strengthen through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic laws or regulations against their nationals and other individuals or entities operating on their territory, to prevent and punish violations of the measures referred to in paragraph 2 of this Resolution, and to inform the Committee of the adoption of such measures, and invites States to report the results of all related investigations or enforcement actions to the Committee unless to do so would compromise the investigation or enforcement actions; ...” 75. In Resolution 1526 (2004), adopted on 30 January 2004, the Security Council requested States, on the submission of new names to be added to the Committee’s list, to supply information facilitating the identification of the persons or entities concerned. It also expressly encouraged States to inform, as far as possible, the persons and entities on the Committee’s list of the measures taken against them, of the Committee’s guidelines and of Resolution 1452 (2002) concerning the possibility of exemption from certain sanctions. 76. In response to a surge in criticism of the sanctions regime, the Security Council adopted increasingly detailed resolutions to strengthen the procedural safeguards. In this connection, Resolution 1730 (2006) established the current procedure by creating a “focal point” to receive delisting requests in respect of persons or entities on the lists kept by the Sanctions Committee. Under that Resolution the focal point was responsible for forwarding such requests, for their information and possible comments, to the designating government(s) and to the government(s) of citizenship and residence. That was to be followed by a consultation between the governments concerned, with or without the focal point acting as an intermediary. If recommended by one of those governments, the delisting request was to be placed on the agenda of the Sanctions Committee, which would take decisions by consensus among its fifteen members. 77. Resolution 1735 (2006) established a procedure for notifying the individuals or entities whose names were on the list. It further clarified the criteria for delisting as follows: “14. ... the Committee, in determining whether to remove names from the Consolidated List, may consider, among other things, (i) whether the individual or entity was placed on the Consolidated List due to a mistake of identity, or (ii) whether the individual or entity no longer meets the criteria set out in relevant resolutions, in particular Resolution 1617 (2005); in making the evaluation in (ii) above, the Committee may consider, among other things, whether the individual is deceased, or whether it has been affirmatively shown that the individual or entity has severed all association, as defined in Resolution 1617 (2005), with [al-Qaeda], [Osama bin Laden], the Taliban, and their supporters, including all individuals and entities on the Consolidated List;” 78. The procedure was subsequently reinforced with the adoption of Resolutions 1822 (2008) and 1904 (2009), which post-date the present case. In the latter, adopted on 17 December 2009, the Security Council decided to create an Office of the Ombudsperson, whose task is to receive requests from individuals concerned by the sanctions imposed by the Security Council in the fight against terrorism. Under that Resolution, persons on the sanctions list are entitled to obtain information on the reasons for the measures taken against them and to file delisting petitions with the Ombudsperson, who examines each case impartially and independently and then submits a report to the Sanctions Committee explaining the reasons for or against delisting. 3. Vienna Convention on the Law of Treaties (1969) 79. Article 27 (“Internal law and observance of treaties”) of the Vienna Convention on the Law of Treaties reads as follows: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. ...” 80. Article 30 (“Application of successive treaties relating to the same subject matter”) reads as follows: “1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States Parties to both treaties the same rule applies as in paragraph 3; (b) as between a State Party to both treaties and a State Party to only one of the treaties, the treaty to which both States are Parties governs their mutual rights and obligations. 5. Paragraph 4 is without prejudice to Article 41, or to any question of the termination or suspension of the operation of a treaty under Article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.” 4. Work of the United Nations International Law Commission 81. The report of the study group of the International Law Commission entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, published in 2006, contains the following observations concerning Article 103 of the Charter: 4. Harmonization – systemic integration “37. In international law, there is a strong presumption against normative conflict. Treaty interpretation is diplomacy, and it is the business of diplomacy to avoid or mitigate conflict. This extends to adjudication as well. As Rousseau puts the duties of a judge in one of the earlier but still more useful discussions of treaty conflict: ... lorsqu’il est en présence de deux accords de volontés divergentes, il doit être tout naturellement porté à rechercher leur coordination plutôt qu’à consacrer à leur antagonisme [Charles Rousseau, “De la compatibilité des normes juridiques contradictoires dans l’ordre international”, RGDIP vol. 39 (1932), p. 153]. [1] 38. This has emerged into a widely accepted principle of interpretation and it may be formulated in many ways. It may appear as the thumb-rule that when creating new obligations, States are assumed not to derogate from their obligations. Jennings and Watts, for example, note the presence of a: presumption that the parties intend something not inconsistent with generally recognized principles of international law, or with previous treaty obligations towards third States [Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law (London: Longman, 1992) (9th ed), p. 1275. For the wide acceptance of the presumption against conflict – that is the suggestion of harmony – see also Pauwelyn, Conflict of Norms ..., pp. 240-44]. 39. As the International Court of Justice stated in the Right of Passage case: it is a rule of interpretation that a text emanating from a government must, in principle, be interpreted as producing and intended to produce effects in accordance with existing law and not in violation of it [ Case concerning the Right of Passage over Indian Territory (Preliminary Objections) (Portugal v. India) ICJ Reports 1957 p. 142]. ... 331. Article 103 does not say that the Charter prevails, but refers to obligations under the Charter. Apart from the rights and obligations in the Charter itself, this also covers duties based on binding decisions by United Nations bodies. The most important case is that of Article 25 that obliges member States to accept and carry out resolutions of the Security Council that have been adopted under Chapter VII of the Charter. Even if the primacy of Security Council decisions under Article 103 is not expressly spelled out in the Charter, it has been widely accepted in practice as well as in doctrine ...” 5. Relevant international case-law 82. The measures taken under the Security Council resolutions establishing a listing system and the possibility of reviewing the legality of such measures have been examined, at international level, by the Court of Justice of the European Communities (“CJEC”) and by the United Nations Human Rights Committee. (a) The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission (Court of Justice of the European Communities) 83. The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (joined cases C-402/05 P and C-415/05 P – hereinafter “ Kadi ”) concerned the freezing of the applicants’ assets pursuant to European Community Regulations adopted in connection with the implementation of Security Council Resolutions 1267 (1999), 1333 (2000) and 1390 (2002), which, among other things, required all United Nations member States to take measures to freeze the funds and other financial resources of the individuals and entities identified by the Security Council’s Sanctions Committee as being associated with Osama bin Laden, al-Qaeda or the Taliban. In that case the applicants fell within that category and their assets had thus been frozen – a measure that for them constituted a breach of their fundamental right to respect for property as protected by the Treaty instituting the European Community (“the EC Treaty”). They contended that the EC Regulations had been adopted ultra vires. 84. On 21 September 2005 the Court of First Instance (which on 1 December 2009 became known as the “General Court”) rejected those complaints and confirmed the lawfulness of the Regulations, finding mainly that Article 103 of the Charter had the effect of placing Security Council resolutions above all other international obligations (except for those covered by jus cogens ), including those arising from the EC Treaty. It concluded that it was not entitled to review Security Council resolutions, even on an incidental basis, to ascertain whether they respected fundamental rights. 85. Mr Kadi appealed to the CJEC (which on 1 December 2009 became known as the “Court of Justice of the European Union”). The appeal was examined by a Grand Chamber jointly with another case. In its judgment of 3 September 2008, the CJEC found that, in view of the internal and autonomous nature of the Community legal order, it had jurisdiction to review the lawfulness of a Community regulation adopted within the ambit of that order even if its purpose was to implement a Security Council resolution. It thus held that, even though it was not for the “Community judicature” to examine the lawfulness of Security Council resolutions, it was entitled to review Community acts or acts of member States designed to give effect to such resolutions, and that this “would not entail any challenge to the primacy of that resolution in international law”. 86. The CJEC concluded that the Community judicature had to ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested Regulation, were designed to give effect to resolutions of the Security Council. The judgment contained the following relevant passages: “... 281. In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions (Case 294/83 Les Verts v. Parliament [1986] ECR 1339, paragraph 23). ... 290. It must therefore be considered whether, as the Court of First Instance held, as a result of the principles governing the relationship between the international legal order under the United Nations and the Community legal order, any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is in principle excluded, notwithstanding the fact that, as is clear from the decisions referred to in paragraphs 281 to 284 above, such review is a constitutional guarantee forming part of the very foundations of the Community. ... 293. Observance of the undertakings given in the context of the United Nations is required just as much in the sphere of the maintenance of international peace and security when the Community gives effect, by means of the adoption of Community measures taken on the basis of Articles 60 EC and 301 EC, to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations. 294. In the exercise of that latter power it is necessary for the Community to attach special importance to the fact that, in accordance with Article 24 of the Charter of the United Nations, the adoption by the Security Council of resolutions under Chapter VII of the Charter constitutes the exercise of the primary responsibility with which that international body is invested for the maintenance of peace and security at the global level, a responsibility which, under Chapter VII, includes the power to determine what and who poses a threat to international peace and security and to take the measures necessary to maintain or restore them. ... 296. Although, because of the adoption of such an act, the Community is bound to take, under the EC Treaty, the measures necessitated by that act, that obligation means, when the object is to implement a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations, that in drawing up those measures the Community is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations relating to such implementation. 297. Furthermore, the Court has previously held that, for the purposes of the interpretation of the contested Regulation, account must also be taken of the wording and purpose of Resolution 1390 (2002) which that Regulation, according to the fourth recital in the preamble thereto, is designed to implement ( Möllendorf and Möllendorf-Niehuus, paragraph 54 and case-law cited). 298. It must however be noted that the Charter of the United Nations does not impose the choice of a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII of the Charter, since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each member of the United Nations. The Charter of the United Nations leaves the members of the United Nations a free choice among the various possible models for transposition of those resolutions into their domestic legal order. 299. It follows from all those considerations that it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations. 300. What is more, such immunity from jurisdiction for a Community measure like the contested Regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of the Charter, cannot find a basis in the EC Treaty.” 87. The CJEC concluded that the contested Regulations, which did not provide for any remedy in respect of the freezing of assets, were in breach of fundamental rights and were to be annulled. (b) The case of Sayadi and Vinck v. Belgium (United Nations Human Rights Committee) 88. In the case brought by Nabil Sayadi and Patricia Vinck against Belgium (Views of the Human Rights Committee of 22 October 2008, concerning Communication no. 1472/2006), the Human Rights Committee had occasion to examine the national implementation of the sanctions regime established by the Security Council in Resolution 1267 (1999). The two complainants, Belgian nationals, had been placed on the lists appended to that Resolution in January 2003, on the basis of information which had been provided to the Security Council by Belgium, shortly after the commencement of a domestic criminal investigation in September 2002. They had submitted several delisting requests at national, regional and United Nations levels, all to no avail. In 2005, the Brussels Court of First Instance had ordered the Belgian State, inter alia, to initiate urgently a delisting procedure with the United Nations Sanctions Committee, and the State had subsequently done so. 89. The Human Rights Committee noted that the travel ban imposed on the complainants resulted from the transmittal by Belgium of their names to the Sanctions Committee, before they had been heard. It thus took the view that even though Belgium was not competent to remove their names from either the United Nations or the European Union lists, it was responsible for the presence of their names on the lists, and for the resulting travel ban. The Committee found a violation of the complainants’ right to freedom of movement under Article 12 of the International Covenant on Civil and Political Rights, because both the dismissal of the criminal investigation and the State Party’s delisting requests showed that the restrictions were not necessary to protect national security or public order. 90. The Committee also found an unlawful attack on the complainants’ honour and reputation, in breach of Article 17 of the Covenant, based on the accessibility of the list on the Internet, a number of press articles, the transmittal of the information about them prior to the conclusion of the criminal investigation, and the fact that, despite the State Party’s requests for removal, their personal contact details were still accessible to the public. 91. In the Committee’s opinion, although the State Party itself was not competent to remove the names from the list, it had the duty to do all it could to obtain that deletion as soon as possible, to provide the complainants with compensation, to make public the requests for delisting, and to ensure that similar violations did not occur in the future. 92. On 20 July 2009 the complainants’ names were removed from the list pursuant to a decision of the Sanctions Committee. 6. Relevant case-law of other States 93. The measures in question have also been examined at national level, by the United Kingdom Supreme Court and the Canadian Federal Court. (a) The case of Ahmed and others v. HM Treasury (United Kingdom Supreme Court) 94. The case of Ahmed and others v. HM Treasury, examined by the Supreme Court of the United Kingdom on 27 January 2010, concerned the freezing of the appellants’ assets in accordance with the sanctions regime introduced by Resolutions 1267 (1999) and 1373 (2001). The Supreme Court took the view that the government had acted ultra vires the powers conferred upon it by section 1 of the United Nations Act 1946 in making certain orders to implement Security Council resolutions on sanctions. 95. In particular, Lord Hope, Deputy President of the Supreme Court, made the following observations: “6. ... The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them. Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.” 96. He acknowledged that the appellants had been deprived of an effective remedy and in that connection found as follows: “81. I would hold that G is entitled to succeed on the point that the regime to which he has been subjected has deprived him of access to an effective remedy. As Mr Swift indicates, seeking a judicial review of the Treasury’s decision to treat him as a designated person will get him nowhere. G answers to that description because he has been designated by the 1267 Committee [the Sanctions Committee]. What he needs if he is to be afforded an effective remedy is a means of subjecting that listing to judicial review. This is something that, under the system that the 1267 Committee currently operates, is denied to him. I would hold that Article 3 § 1 (b) of the AQO [al-Qaeda Order], which has this effect, is ultra vires section 1 of the 1946 Act. It is not necessary to consider for the purposes of this case whether the AQO as a whole is ultra vires except to say that I am not to be taken as indicating that Article 4 of that Order, had it been applicable in G’s case, would have survived scrutiny. 82. I would treat HAY’s case in the same way. He too is a designated person by reason of the fact that his name is on the 1267 Committee’s list. As has already been observed, the United Kingdom is now seeking that his name should be removed from it. By letter dated 1 October 2009 the Treasury’s Sanctions Team informed his solicitors that the delisting request was submitted on 26 June 2009 but that at the Committee’s first consideration of it a number of States were not in a position to accede to the request. Further efforts to obtain delisting are continuing, but this has still not been achieved. So he remains subject to the AQO. In this situation he too is being denied an effective remedy.” 97. The Supreme Court found unlawful both the order implementing Resolution 1373 (2001) in a general counterterrorism context (“the Terrorism Order”) and the order implementing the al-Qaeda and Taliban Resolutions (“the al-Qaeda Order”). However, it annulled the al-Qaeda Order only in so far as it did not provide for an effective remedy (see Lord Brown’s dissenting opinion on this point). (b) The case of Abdelrazik v. Canada (Minister of Foreign Affairs) (Federal Court, Canada) 98. In its judgment of 4 June 2009 in the case of Abdelrazik v. Canada (Minister of Foreign Affairs), Canada’s Federal Court took the view that the listing procedure of the al-Qaeda and Taliban Sanctions Committee was incompatible with the right to an effective remedy. The case concerned a ban on the return to Canada of the applicant, who had Canadian and Sudanese nationality, as a result of the application by Canada of the Security Council Resolutions establishing the sanctions regime. The applicant was thus forced to live in the Canadian embassy in Khartoum, Sudan, fearing possible detention and torture should he leave this sanctuary. 99. Zinn J, who pronounced the lead judgment in the case, stated in particular: “51. I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or delisting procedure that recognizes the principles of natural justice or that provides for basic procedural fairness.” 100. He further observed: “54. ... it is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion.” 101. After reviewing the measures implementing the travel ban on the basis of the al-Qaeda and Taliban Resolutions, the judge concluded that the applicant’s right to enter Canada had been breached, contrary to the provisions of the Canadian Charter of Rights and Freedoms (see paragraphs 62 et seq. of the judgment). THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS A. Compatibility of the complaints with the Convention and Protocols thereto 1. The parties’ submissions (a) The Government 102. The Government requested the Court to declare the application inadmissible as being incompatible ratione personae with the Convention. They argued that the impugned measures had been based on Security Council Resolutions 1267 (1999) et seq., which, under Articles 25 and 103 of the United Nations Charter, were binding and prevailed over any other international agreement. In this connection they referred in particular to the provisional measures order of the International Court of Justice in the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 15, § 39: “Whereas both Libya and the United Kingdom, as members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in Resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention;” The Government argued that, in those circumstances, Switzerland could not be held responsible internationally for the implementation of the measures in issue. 103. The Government added that those measures, emanating as they did from the United Nations Security Council, fell outside the scope of the Court’s review. The application in the present case was therefore also inadmissible ratione materiae. (b) The applicant 104. The applicant argued that his application was compatible ratione personae with the Convention. He took the view that the direct effect of the obligations under the Security Council Resolutions was irrelevant to the issue of whether or not the restrictions imposed on him were attributable to the respondent State, since those restrictions had been authorised by the Government at national level in accordance with Article 190 of the Federal Constitution. Relying on Article 27 of the Vienna Convention on the Law of Treaties, he added that Switzerland could not hide behind its domestic legal arrangements when it came to fulfilling its international obligations (see paragraph 79 above). 105. The applicant also took the view that the Swiss authorities had applied the possibilities of derogation envisaged in the Security Council Resolutions in a much more restrictive manner than was required by the sanctions regime. The Federal Court itself had noted this in its judgment of 14 November 2007. Rather than automatically having to implement the Security Council Resolutions, the national authorities had therefore enjoyed a certain margin of appreciation in taking the measures in issue. The applicant added in this connection that his delisting, as decided by the Sanctions Committee on 23 September 2009, had not taken effect in Switzerland until a week later. He saw this as further proof that the application of the Security Council Resolutions was not automatic. 106. Lastly, the applicant argued that it was not a matter, in the present case, of calling into question the primacy of the United Nations Charter under Article 103 thereof – a finding of a violation of the Convention not being, in his opinion, capable of affecting the validity of States’ international obligations – but simply of ensuring that the Charter was not used as a pretext to avoid compliance with the provisions of the Convention. 2. Submissions of third-party interveners (a) The French Government 107. The French Government took the view that the reservation of Convention observance, in the sense of ensuring “equivalent protection”, could not be applied appropriately in the present case because the measures laid down by Switzerland arose necessarily from the United Nations Security Council Resolutions, which all States were required to apply and which also had to be given precedence over any other international rule. In those circumstances France was of the view that the measures in question could not be regarded as falling within Switzerland’s “jurisdiction” for the purposes of Article 1 of the Convention; otherwise that notion would be rendered meaningless. 108. The French Government pointed out that, although in its judgment of 30 June 2005 in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI) (hereinafter “ Bosphorus ”) the Court had regarded as compatible with Article 1 of the Convention an application disputing the validity of a national measure simply implementing a regulation of the European Communities that itself stemmed from a Security Council resolution, the Court had noted in that judgment that it was the EC Regulation and not the Security Council Resolution that constituted the legal basis of the national measure in issue (ibid., § 145). 109. The French Government were also convinced that, even though the measures in issue did not concern missions conducted outside the territory of the member States, like those in Behrami v. France and Saramati v. France, Germany and Norway ((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007) (hereinafter “ Behrami and Saramati ”), but rather measures implemented in domestic law, the arguments emerging from that case-law, which stemmed from the nature of the Security Council’s missions and States’ obligations arising therefrom, should lead the Court likewise to declare the disputed measures attributable to the United Nations and thus to find the applicant’s complaints incompatible ratione personae with the Convention. Thus they argued that the present case provided the Court with an opportunity to transpose onto the member States’ actual territory the principles established in Behrami and Saramati, taking into account the hierarchy of international law norms and the various legal spheres arising therefrom. 110. The French Government also pointed out that, in its Kadi judgment (see paragraph 83 above), the CJEC had relied on the constitutional nature of the EC Treaty for its review of a regulation implementing Security Council resolutions. Such considerations being absent in the present case, the French Government had difficulty conceiving what could justify a finding by the Court, in disregard of Article 103 of the United Nations Charter, that Switzerland was responsible for the implementation of resolutions that it was required to apply and to which it also had to give precedence over any other undertaking. (b) The United Kingdom Government 111. The United Kingdom Government observed that the entry-and-transit ban had been imposed on the applicant in the context of the Taliban Ordinance, which they regarded as having merely implemented Security Council resolutions that were binding on all States, having been adopted under Chapter VII of the United Nations Charter (Article 25 thereof): the obligations arising from those resolutions thus took precedence, under Article 103 of the Charter, over all other international agreements. In this connection the United Kingdom Government were of the opinion that the effectiveness of the sanctions regime set up to maintain international peace and security would be seriously compromised if priority were given to the rights arising from Article 5 or 8 of the Convention. They took the view that, particularly in paragraph 2 (b) of Resolution 1390 (2002), the Security Council had used “clear and explicit language” to impose on States specific measures that might conflict with their other international obligations, in particular those arising from human rights instruments. Referring to the judgment recently delivered in Al ‑ Jedda v. the United Kingdom ([GC], no. 27021/08, § 102, ECHR 2011), they thus argued that the respondent State had been obliged to apply the measures in issue. (c) JUSTICE 112. The organisation JUSTICE considered that the sanctions regime established by Security Council Resolution 1267 (1999) was the source of the draconian restrictions on the Convention rights of the listed persons and their families, in particular the right to respect for their private and family life, the right to the enjoyment of property and freedom of movement. 113. The severity of that interference with Convention rights was exacerbated by the inability of the listed persons to challenge effectively the decision to list them, including the evidential basis for the decision. Consequently, the sanctions regime also failed to afford those persons and their families the right of access to a court and the right to an effective remedy. JUSTICE took the view that the procedures of the Sanctions Committee did not therefore provide equivalent protection for those Convention rights. 114. Those conclusions, it observed, were reflected in the findings of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, the United Nations Special Rapporteur on Terrorism and Human Rights and in the decisions of the Canadian Federal Court ( Abdelrazik ), the United Kingdom Supreme Court ( Ahmed ) and the CJEC ( Kadi ) (see “Relevant international case-law” and “Relevant case-law of other States”, paragraphs 82-92 and 93-101 above). 115. JUSTICE was convinced that the Court was not obliged to interpret Article 103 of the Charter in such a manner that it would result in Convention rights being displaced. In particular, the “maintenance of international peace and security”, though the primary function of the Security Council, was not the pre-eminent principle either of international law or of the Charter. At least equal importance was to be attached to the principle of respect for fundamental rights, as indeed was reflected in the Preamble to the Charter. 3. The Court’s assessment 116. In the light of the arguments set out by the parties and third-party interveners, the Court must determine whether it has jurisdiction to entertain the complaints raised by the applicant. For that purpose it will have to examine whether the application falls within the scope of Article 1 of the Convention and thus engages the responsibility of the respondent State. (a) Compatibility ratione personae 117. Article 1 of the Convention reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 118. As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, ECHR 2011; Al-Jedda, cited above, § 74; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001 ‑ XII; and Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161). “Jurisdiction” under Article 1 is a threshold criterion for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of infringement of rights and freedoms set forth in the Convention (see Al-Skeini and Others, cited above, § 130; Al-Jedda, cited above, § 74; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII). 119. The notion of jurisdiction reflects the meaning given to that term in public international law (see Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, 14 May 2002; and Banković and Others, cited above, §§ 59-61), such that a State’s jurisdiction is primarily territorial (see Al-Skeini and Others, cited above, § 131, and Banković and Others, cited above, § 59) and is presumed to be exercised normally throughout the State’s territory (see Ilaşcu and Others, cited above, § 312). 120. Relying on the Court’s decision in Behrami and Saramati (cited above), the intervening French Government, in particular, argued that the measures taken by the member States of the United Nations to implement Security Council resolutions under Chapter VII of the Charter were attributable to the United Nations and were thus incompatible ratione personae with the Convention. The Court cannot endorse that argument. It would point out that it found in Behrami and Saramati that the impugned acts and omissions of the Kosovo Force (KFOR), whose powers had been validly delegated to it by the Security Council under Chapter VII of the Charter, and those of the United Nations Interim Administration Mission in Kosovo (UNMIK), a subsidiary organ of the United Nations set up under the same Chapter, were directly attributable to the United Nations, an organisation of universal jurisdiction fulfilling its imperative collective-security objective (ibid., § 151). In the present case, by contrast, the relevant Security Council resolutions, especially Resolutions 1267 (1999), 1333 (2000), 1373 (2001) and 1390 (2002), required States to act in their own names and to implement them at national level. 121. In the present case the measures imposed by the Security Council Resolutions were implemented at national level by an Ordinance of the Federal Council, and the applicant’s requests for exemption from the ban on entry into Swiss territory were rejected by the Swiss authorities (the Federal Office of Immigration, Integration and Emigration – IMES, then the Federal Office for Migration – FOM). The acts in question therefore relate to the national implementation of United Nations Security Council resolutions (see, mutatis mutandis, Bosphorus, cited above, § 137, and contrast Behrami and Saramati, cited above, § 151). The alleged violations of the Convention are thus attributable to Switzerland. 122. The measures in issue were therefore taken in the exercise by Switzerland of its “jurisdiction” within the meaning of Article 1 of the Convention. The impugned acts and omissions are thus capable of engaging the respondent State’s responsibility under the Convention. It also follows that the Court has jurisdiction ratione personae to entertain the present application. 123. Accordingly, the Court dismisses the objection that the application is incompatible ratione personae with the Convention. (b) Compatibility ratione materiae 124. The Government argued that the present application was also incompatible ratione materiae with the Convention. In this connection they emphasised the binding nature of the resolutions adopted by the Security Council under Chapter VII of the United Nations Charter and its primacy over any other international agreement, in accordance with Article 103 thereof. 125. The Court finds that these arguments concern more the merits of the complaints than their compatibility with the Convention. Consequently, the Government’s objection as to the incompatibility ratione materiae of the application with the Convention should be joined to the merits. B. Whether the applicant is a “victim” 1. The parties’ submissions 126. The Government pointed out that on 23 September 2009 the applicant’s name had been deleted from the list annexed to the Security Council Resolutions providing for the impugned sanctions and on 29 September 2009 the Taliban Ordinance had been amended accordingly, with effect from 2 October 2009. Thus, they argued, the impugned measures against the applicant had been completely discontinued. In the Government’s opinion, the dispute had therefore been resolved within the meaning of Article 37 § 1 (b) of the Convention and, as a result, they asked the Court to strike the application out of its list, in accordance with that provision. 127. The applicant disagreed with that argument. He took the view that the mere fact that the situation had evolved in such a way that his name had been deleted from the Sanctions Committee’s list, that the Taliban Ordinance had been amended accordingly and that the sanctions against him had been lifted, since the beginning of October 2009, had not deprived him of his victim status as regards the breaches of his rights prior to that date. 2. The Court’s assessment 128. It is the settled case-law of the Court that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; Association Ekin v. France (dec.), no. 39288/98, 18 January 2000; Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III; and Eckle v. Germany, 15 July 1982, § 66, Series A no. 51). 129. In the present case, the Court observes that the sanctions imposed on the applicant have been lifted and that he is now authorised to cross the border of Campione d’Italia to enter or pass through Switzerland freely. However, the lifting of sanctions, which was not decided until September-October 2009, has not deprived the applicant of his status as victim of the restrictions from which he suffered from the time his name was added, in November 2001, to the Sanctions Committee’s list and to the list annexed to the Taliban Ordinance, or at least from 27 November 2003, when he was informed that he was no longer authorised to cross the border (see paragraph 26 above). The lifting of the sanctions cannot be regarded as an acknowledgment by the Government, even implicitly, of a violation of the Convention, for the purposes of the above-cited case-law. Moreover, it was not followed by any redress within the meaning of that case-law. 130. Accordingly, the applicant may claim to have been the victim of the alleged violations of the Convention for a period of at least six years. As a result, the Government’s objection as to an alleged lack of victim status should be dismissed. C. Whether domestic remedies have been exhausted 1. The parties’ submissions (a) The Government 131. The Government observed that, according to the Security Council’s sanctions regime, exemptions from the entry-and-transit ban could be granted when they were necessary for the fulfilment of a judicial process, or for other reasons, in particular of a medical, humanitarian or religious nature, subject to the approval of the Sanctions Committee (see Resolution 1390 (2002), paragraph 2(b)). To take account of such situations, Article 4a § 2 of the Taliban Ordinance provided that the FOM could, in accordance with the decisions of the Security Council or for the protection of Swiss interests, grant exemptions. 132. The Government contended that the various decisions given by the FOM had not been appealed against, and the action taken before it concerned only the question of the delisting of the applicant and the organisations associated with him from Annex 2 to the Taliban Ordinance. 133. The Government pointed out that, both before and after the Federal Court’s judgment, the applicant had not appealed against any decision of the former IMES or of the FOM (the IMES having been incorporated into the FOM on its creation in 2005) concerning exemptions from the sanctions regime. In addition, the authorities had granted exemptions (in decisions of 20 September 2006 and 11 September 2008) that had not been used by the applicant. The applicant had explained in this connection that the duration of the exemptions had not been sufficient, in view of his age and the distance to be travelled, for him to make the intended journeys. On this subject the Government pointed out that the first exemption, for one day, had been granted for a journey to Milan in connection with judicial proceedings, and that it took only one hour to drive from Campione d’Italia to the centre of Milan. The second exemption, for two days, had been granted to the applicant for a journey to Berne and Sion, both cities being less than three and a half hours away from Campione by car. 134. Lastly, the Government argued that the applicant could at any time have requested to move house, even temporarily, to another part of Italy, the country of which he was a national. Such a request would have been submitted by the competent Swiss authority (the IMES, then the FOM) to the Sanctions Committee. As the sanctions had been formulated in general terms, the Government were of the opinion that the Committee would most probably have authorised the applicant’s move. 135. For these reasons the Government submitted that the applicant had failed to exhaust domestic remedies. (b) The applicant 136. Concerning the first three refusals by the FOM (26 March 2004, 11 May 2007 and 2 August 2007), the applicant contended that there was no clear domestic case-law as to whether the Swiss authorities had any margin of appreciation in the granting of exemptions from the restrictions imposed on him and that no clarification had been provided by the Federal Court in this connection. Furthermore, no action appeared to have been taken by the FOM or any other authority to clarify the position regarding the grant of exemptions. In his submission it could not therefore be said that an effective remedy, within the meaning of the Court’s case-law, was available. 137. As regards the Government’s argument that he had failed to make use of the exemptions granted to him by the FOM (on 20 September 2006 and 11 September 2008), he alleged that they concerned only a partial lifting of the measures imposed on him, in respect of very specific situations. Given his age and the length of the journeys involved, he argued that the exemptions for one or two days were far from sufficient. 138. As to the general sanctions regime, the applicant submitted that he had exhausted domestic remedies, because he had challenged before the Federal Court the restrictions imposed by the Taliban Ordinance, of which he complained before the Court. 139. The applicant further observed that the Government’s argument that a request to move to another part of Italy would have had greater prospects of success than the request for delisting was purely speculative. He also pointed out that such an option – which he did not consider possible in his case, particularly because of the freezing of his assets by the sanctions regime and the fact that it had not been envisaged by the Federal Court – would in any event have provided redress only for part of the impugned restrictions. 2. The Court’s assessment 140. The Court reiterates that the only remedies Article 35 of the Convention requires to be exhausted are those that are available and sufficient and relate to the breaches alleged (see Tsomtsos and Others v. Greece, 15 November 1996, § 32, Reports 1996 ‑ V). 141. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 ‑ IX). 142. Moreover, an applicant who has availed himself of a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see, for example, Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III, and Manoussakis and Others v. Greece, 26 September 1996, § 33, Reports 1996 ‑ IV). 143. In the present case the Court notes that the applicant did not challenge the refusals by the IMES and the FOM to grant his requests for exemption from the sanctions regime and that on two occasions he was granted exemptions that he did not use (see paragraphs 34 and 57 above). 144. However, even supposing that those exemptions had alleviated certain effects of the sanctions regime, by allowing him to leave the enclave of Campione d’Italia for medical or legal reasons, the Court is of the view that the issue of exemptions was part of a broader situation whose origin lay in the addition by the Swiss authorities of the applicant’s name to the list annexed to the Taliban Ordinance, which was based on the Sanctions Committee’s list. In this connection, it should be observed that the applicant submitted many requests to the national authorities for the deletion of his name from the list annexed to the Taliban Ordinance – requests that were denied by the State Secretariat for Economic Affairs (SECO) and the Federal Department of Economic Affairs (see paragraphs 30-32 above). The Federal Council, to which he appealed against the Department’s decision, referred the case to the Federal Court. By a judgment of 14 November 2007, that court dismissed his appeal without examining the merits of the complaints under the Convention. Consequently, the Court takes the view that the applicant has exhausted domestic remedies relating to the sanctions regime as a whole, the application of which in his case stemmed from the addition of his name to the list annexed to the Taliban Ordinance. 145. In these circumstances, the Court does not find it necessary to address, at this stage, the argument raised by the Government to the effect that the applicant could have been reasonably expected to move from Campione d’Italia, where he had been living since 1970, to another region of Italy. That question will, by contrast, play a certain role when it comes to examining the proportionality of the impugned measures (see paragraph 190 below). 146. As to the complaint under Article 8 that the addition of the applicant’s name to the list annexed to the Taliban Ordinance had impugned his honour and reputation, the Court acknowledges that it was raised, at least in substance, before the domestic authorities. The applicant indeed claimed that the addition of his name to the Sanctions Committee’s list was tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case (see paragraphs 33 and 38 above). 147. Consequently, the Court dismisses the Government’s objection as to the inadmissibility of the application for failure to exhaust domestic remedies in respect of the applicant’s complaints under Articles 5 and 8. 148. As regards the complaint under Article 13, the Court finds that the objection of non-exhaustion of remedies is closely linked to the merits of the complaint. Accordingly, the Court joins it to the merits. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 149. The applicant complained that the measure by which he was prohibited from entering or passing through Switzerland had breached his right to respect for his private life, including his professional life, and his family life. He contended that this ban had prevented him from seeing his doctors in Italy or in Switzerland and from visiting his friends and family. He further claimed that the addition of his name to the list annexed to the Taliban Ordinance had impugned his honour and reputation. In support of these complaints he relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 150. The Court finds that it should first examine the applicability of Article 8 in the present case. 151. It reiterates that “private life” is a broad term not susceptible to exhaustive definition (see, for example, Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Tysiąc v. Poland, no. 5410/03, § 107, ECHR 2007 ‑ I; Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008; Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). The Court has found that health, together with physical and moral integrity, falls within the realm of private life (see Glor, cited above, § 54, and X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91; see also Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C). The right to private life also encompasses the right to personal development and to establish and develop relationships with other human beings and the outside world in general (see, for example, S. and Marper, cited above, § 66). 152. It should moreover be observed that Article 8 also protects the right to respect for “family life”. Under that provision the State must in particular act in a manner calculated to allow those concerned to lead a normal family life (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31). The Court determines the existence of family life on a case-by-case basis, looking at the circumstances of each case. The relevant criterion in such matters is the existence of effective ties between the individuals concerned (ibid.; see also K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII, and Şerife Yiğit v. Turkey [GC], no. 3976/05, § 93, 2 November 2010). 153. The Court would further reiterate that Article 8 also protects the right to respect for one’s home (see, for example, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109). 154. In the light of that case-law, the Court finds that the complaints submitted by the applicant under Article 8 are indeed to be examined under that Article. It cannot be excluded that the measure prohibiting him from entering Switzerland prevented him – or at least made it more difficult for him – to consult his doctors in Italy or Switzerland or to visit his friends and family. Article 8 therefore applies in the present case in both its “private life” aspect and its “family life” aspect. 155. Furthermore, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 156. The applicant alleged that the restrictions on his freedom of movement had prevented him from taking part in family events (such as funerals or weddings), which had taken place during the period when he was unable to travel freely on account of the sanctions regime. He thus claimed to be a victim of a violation of his right to respect for his private and family life. In this connection, he contended that his status as an Italian national, not resident in the territory of the respondent State, did not prevent him from complaining of a violation of his rights by Switzerland, especially given the very special situation of the Campione d’Italia enclave, being surrounded by Swiss territory. He even took the view that, given the integration of Campione d’Italia into the Canton of Ticino, in particular its economic integration, it would have been appropriate for the Swiss authorities to treat him as a Swiss national for the purposes of the sanctions regime. Moreover, he asserted that, contrary to the Government’s allegation, he did not have the option of living elsewhere in Italy. 157. The applicant further observed that the addition of his name to the list annexed to the Taliban Ordinance had caused damage to his honour and reputation, since that list enumerated persons suspected of helping to finance terrorism. In support of that view he referred to the case of Sayadi and Vinck v. Belgium (see paragraphs 88-92 above) in which the Human Rights Committee found that the addition of the complainants’ names to the Sanctions Committee’s list had constituted an unlawful attack on their honour. 158. In the applicant’s submission, those circumstances were aggravated by the fact that he had never been given an opportunity to challenge the merits of the allegations against him. 159. There had thus been a violation of Article 8 on various counts. (b) The Government 160. The Government observed that the applicant had been free to receive all the visits he wished in Campione d’Italia, in particular from his grandchildren. The applicant had not alleged that it would have been impossible or particularly difficult for his family or friends to go to Campione d’Italia, where he could have carried on his family and social life as he saw fit, without any restriction whatsoever. As regards exceptional events, such as the marriage of a friend or relative, he could have sought an exemption from the applicable rules. In addition, as shown in connection with the exhaustion of domestic remedies, the applicant could have requested to move to another part of Italy. Lastly, the Convention did not protect the right of a foreign national to visit a State that had prohibited him from entering it simply so that he could maintain his residence in an enclave which he could not leave without crossing that State. For all those reasons the Government were of the opinion that the disputed measures did not constitute interference with the rights guaranteed by Article 8. 161. In response to the applicant’s allegation that he had never been able to find out the factors which had led to the impugned measures, or to challenge them before a court, the Government stated that, as shown in their earlier observations, the impugned measures had not breached the applicant’s rights under Article 8. Consequently, the procedural aspect of that provision was not applicable. 162. For those reasons the Government were of the opinion that the restrictions imposed did not constitute an interference with the applicant’s rights under Article 8. If the Court were to find otherwise, the Government argued that the measure was in any event necessary in a democratic society under Article 8 § 2. 2. The Court’s assessment (a) Whether there has been an interference 163. The Court finds it appropriate to begin by examining the applicant’s allegation that he sustained interference with his right to respect for his private and family life on account of the fact that he was prohibited from entering or passing through Switzerland. 164. The Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of non-nationals into its territory. In other words, the Convention does not as such guarantee the right of an alien to enter a particular country (see, among many other authorities, Maslov v. Austria [GC], no. 1638/03, § 68, ECHR 2008; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII; Boujlifa v. France, 21 October 1997, § 42, Reports 1997 ‑ VI; and Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94). 165. In the present case, the Court observes that the Federal Court found that the impugned measure constituted a significant restriction on the applicant’s freedom (see paragraph 52 above), as he was in a very specific situation on account of the location of Campione d’Italia, an enclave surrounded by the Swiss Canton of Ticino. The Court would endorse that opinion. It takes the view that the measure preventing the applicant from leaving the very confined area of Campione d’Italia for at least six years was likely to make it more difficult for him to exercise his right to maintain contact with others – in particular his friends and family – living outside the enclave (see, mutatis mutandis, Agraw v. Switzerland, no. 3295/06, § 51, and Mengesha Kimfe v. Switzerland, no. 24404/05, §§ 69-72, both judgments of 29 July 2010). 166. In view of the foregoing, the Court finds that there has been an interference with the applicant’s right to respect for his private and family life within the meaning of Article 8 § 1. (b) Whether the interference was justified 167. The interference with the applicant’s right to respect for his private and family life, as found above, will breach Article 8 unless it satisfies the requirements of paragraph 2 of that provision. It thus remains to be determined whether it was “in accordance with the law”, pursued one or more of the legitimate aims enumerated in that paragraph and was “necessary in a democratic society” to achieve such aims. The Court finds it appropriate first to reiterate certain principles that will guide it in its subsequent examination. (i) General principles 168. According to established case-law, a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention (see Bosphorus, cited above, § 153, and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports 1998-I). Treaty commitments entered into by a State subsequent to the entry into force of the Convention in respect of that State may thus engage its responsibility for Convention purposes (see Al ‑ Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010, and Bosphorus, cited above, § 154, and the cases cited therein). 169. Moreover, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see, for example, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131, ECHR 2010; Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; and Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18). 170. When creating new international obligations, States are assumed not to derogate from their previous obligations. Where a number of apparently contradictory instruments are simultaneously applicable, international case-law and academic opinion endeavour to construe them in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law (see, to this effect, Al-Saadoon and Mufdhi, cited above, § 126; Al-Adsani, cited above, § 55; and the Banković decision, cited above, §§ 55 ‑ 57; see also the references cited in the International Law Commission study group’s report entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, paragraph 81 above). 171. As regards, more specifically, the question of the relationship between the Convention and Security Council resolutions, the Court found as follows in its Al-Jedda judgment (cited above): “101. Article 103 of the Charter of the United Nations provides that the obligations of the members of the United Nations under the Charter shall prevail in the event of a conflict with obligations under any other international agreement. Before it can consider whether Article 103 had any application in the present case, the Court must determine whether there was a conflict between the United Kingdom’s obligations under United Nations Security Council Resolution 1546 and its obligations under Article 5 § 1 of the Convention. In other words, the key question is whether Resolution 1546 placed the United Kingdom under an obligation to hold the applicant in internment. 102. In its approach to the interpretation of Resolution 1546, the Court has reference to the considerations set out in paragraph 76 above. In addition, the Court must have regard to the purposes for which the United Nations was created. As well as the purpose of maintaining international peace and security, set out in the first sub-paragraph of Article 1 of the Charter of the United Nations, the third sub-paragraph provides that the United Nations was established to ‘achieve international cooperation in ... promoting and encouraging respect for human rights and fundamental freedoms’. Article 24 § 2 of the Charter requires the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to ‘act in accordance with the Purposes and Principles of the United Nations’. Against this background, the Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.” 172. The Grand Chamber confirms those principles. However, in the present case it observes that, contrary to the situation in Al-Jedda, where the wording of the resolution in issue did not specifically mention internment without trial, Resolution 1390 (2002) expressly required States to prevent the individuals on the United Nations list from entering or transiting through their territory. As a result, the above-mentioned presumption is rebutted in the present case, having regard to the clear and explicit language, imposing an obligation to take measures capable of breaching human rights, that was used in that Resolution (see also paragraph 7 of Resolution 1267 (1999), paragraph 70 above, in which the Security Council was even more explicit in setting aside any other international obligations that might be incompatible with the Resolution). (ii) Legal basis 173. The Court notes that the question of the existence of a legal basis is not a matter of dispute between the parties. It observes that the impugned measures were taken pursuant to the Taliban Ordinance, adopted to implement the relevant Security Council resolutions. To be precise, the ban on entry into and transit through Switzerland was based on Article 4a of that Ordinance (see paragraph 66 above). The measures therefore had a sufficient legal basis. (iii) Legitimate aim 174. The applicant did not appear to deny that the impugned restrictions were imposed in pursuit of legitimate aims. The Court finds it established that those restrictions pursued one or more of the legitimate aims enumerated in Article 8 § 2: firstly, they sought to prevent crime, and, secondly, as the relevant Security Council resolutions had been adopted to combat international terrorism under Chapter VII of the United Nations Charter (“Action with respect to threats to the peace, breaches of the peace, and acts of aggression”), they were also capable of contributing to Switzerland’s national security and public safety. (iv) “Necessary in a democratic society” (α) Implementation of Security Council resolutions 175. The respondent Government, together with the French and United Kingdom Governments, intervening as third parties, argued that the Swiss authorities had no latitude in implementing the relevant Security Council resolutions in the present case. The Court must therefore firstly examine those resolutions in order to determine whether they left States any freedom in their implementation and, in particular, whether they allowed the authorities to take into account the very specific nature of the applicant’s situation and therefore to meet the requirements of Article 8 of the Convention. In order to do so, it will particularly take account of the wording of those resolutions and the context in which they were adopted (see Al-Jedda, cited above, § 76, with the reference cited therein to the relevant case-law of the International Court of Justice). It will moreover have regard to the objectives pursued by those resolutions (see, to that effect, the Kadi judgment of the CJEC, § 296, paragraph 86 above), as stated mainly in the preambles thereto, read in the light of the purposes and principles of the United Nations. 176. The Court observes that Switzerland did not become a member of the United Nations until 10 September 2002: it had thus adopted the Taliban Ordinance of 2 October 2000 before even becoming a member of that organisation, whereas it was already bound by the Convention. Similarly, it had implemented at domestic level the entry-and-transit ban concerning the applicant, as required by Resolution 1390 (2002) of 16 January 2002 (see paragraph 74 above), on 1 May of that year by the amendment of Article 4a of the Taliban Ordinance. The Court acknowledges that this Resolution, particularly in the light of paragraph 2, was addressed to “all States” and not only the members of the United Nations. However, the Court observes that the United Nations Charter does not impose on States a particular model for the implementation of the resolutions adopted by the Security Council under Chapter VII. Without prejudice to the binding nature of such resolutions, the Charter in principle leaves to United Nations member States a free choice among the various possible models for transposition of those resolutions into their domestic legal order. The Charter thus imposes on States an obligation of result, leaving them to choose the means by which they give effect to the resolutions (see to the same effect, mutatis mutandis, the Kadi judgment of the CJEC, § 298, paragraph 86 above). 177. In the present case, the applicant mainly challenged the Swiss entry-and-transit ban imposed on him in particular through the implementation of Resolution 1390 (2002). Whilst paragraph 2(b) of that Resolution required States to take such measures, it stated that the ban did “not apply where entry or transit [was] necessary for the fulfilment of a judicial process ...” (see paragraph 74 above). In the Court’s view, the term “necessary” was to be construed on a case-by-case basis. 178. In addition, in paragraph 8 of Resolution 1390 (2002), the Security Council “[urged] all States to take immediate steps to enforce and strengthen through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic laws or regulations against their nationals and other individuals or entities operating on their territory ...” (see paragraph 74 above). The wording “where appropriate” also had the effect of affording the national authorities a certain flexibility in the mode of implementation of the Resolution. 179. Lastly, the Court would refer to the motion by which the Foreign Policy Commission of the Swiss National Council requested the Federal Council to inform the United Nations Security Council that it would no longer unconditionally be applying the sanctions prescribed against individuals under the counterterrorism resolutions (see paragraph 63 above). Even though that motion was drafted in rather general terms, it can nevertheless be said that the applicant’s case was one of the main reasons for its adoption. In any event, in the Court’s view, the Swiss Parliament, in adopting that motion, was expressing its intention to allow a certain discretion in the application of the Security Council’s counterterrorism resolutions. 180. In view of the foregoing, the Court finds that Switzerland enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the United Nations Security Council. (β) Whether the interference was proportionate in the present case 181. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, S. and Marper, cited above, § 101, and Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, with the cases cited therein). 182. The object and purpose of the Convention, being a human rights treaty protecting individuals on an objective basis (see Neulinger and Shuruk, cited above, § 145), call for its provisions to be interpreted and applied in a manner that renders its guarantees practical and effective (see, among other authorities, Artico v. Italy, 13 May 1980, § 33, Series A no. 37). Thus, in order to ensure “respect” for private and family life within the meaning of Article 8, the realities of each case must be taken into account in order to avoid the mechanical application of domestic law to a particular situation (see, mutatis mutandis, Emonet and Others v. Switzerland, no. 39051/03, § 86, 13 December 2007). 183. The Court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right in issue whilst fulfilling the same aim must be ruled out (see Glor, cited above, § 94). 184. In any event, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see, for example, S. and Marper, cited above, § 101, and Coster, cited above, § 104). A margin of appreciation must be left to the competent national authorities in this connection. The breadth of this margin varies and depends on a number of factors including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference (see S. and Marper, cited above, § 102). 185. In order to address the question whether the measures taken against the applicant were proportionate to the legitimate aim that they were supposed to pursue, and whether the reasons given by the national authorities were “relevant and sufficient”, the Court must examine whether the Swiss authorities took sufficient account of the particular nature of his case and whether they adopted, in the context of their margin of appreciation, the measures that were called for in order to adapt the sanctions regime to the applicant’s individual situation. 186. In doing so, the Court is prepared to take account of the fact that the threat of terrorism was particularly serious at the time of the adoption, between 1999 and 2002, of the resolutions prescribing those sanctions. That is unequivocally shown by both the wording of the resolutions and the context in which they were adopted. However, the maintaining or even reinforcement of those measures over the years must be explained and justified convincingly. 187. The Court observes in this connection that the investigations conducted by the Swiss and Italian authorities concluded that the suspicions about the applicant’s participation in activities related to international terrorism were clearly unfounded. On 31 May 2005 the Swiss Federal Prosecutor closed the investigation opened in October 2001 in respect of the applicant, and on 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the proceedings against him in Italy had been discontinued (see paragraph 56 above). The Federal Court, for its part, observed that the State which had conducted the investigations and criminal proceedings could not itself proceed with the deletion, but it could at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting (see paragraph 51 above). 188. In this connection the Court is surprised by the allegation that the Swiss authorities did not inform the Sanctions Committee until 2 September 2009 of the conclusions of investigations closed on 31 May 2005 (see paragraph 61 above). Observing, however, that the veracity of this allegation has not been disputed by the Government, and without any explanation having been given by the latter for such delay, the Court finds that a more prompt communication of the investigative authorities’ conclusions might have led to the deletion of the applicant’s name from the United Nations list at an earlier stage, thereby considerably reducing the period of time in which he was subjected to the restrictions of his rights under Article 8 (see, in this connection, Sayadi and Vinck (Human Rights Committee), § 12, paragraphs 88 to 92 above). 189. As regards the scope of the prohibition in question, the Court emphasises that it prevented the applicant not only from entering Switzerland but also from leaving Campione d’Italia at all, in view of its situation as an enclave, even to travel to any other part of Italy, the country of which he was a national, without breaching the sanctions regime. 190. Moreover, the Court considers that the applicant could not reasonably have been required to move from Campione d’Italia, where he had been living since 1970, to settle in another region of Italy, especially as it cannot be ruled out that, as a result of the freeze imposed by paragraph 1(c) of Resolution 1373 (2001) (see paragraph 73 above), he could no longer dispose freely of all his property and assets. Regardless of whether a request for authorisation to move house would have had any chance of success, it should be pointed out that the right to respect for one’s home is protected by Article 8 of the Convention (see, for example, Prokopovich v. Russia, no. 58255/00, § 37, ECHR 2004 ‑ XI, and Gillow, cited above, § 46). 191. The Court would further observe that the present case has a medical aspect that should not be underestimated. The applicant was born in 1931 and has health problems (see paragraph 14 above). The Federal Court itself found that, although Article 4a § 2 of the Taliban Ordinance was formulated more as an enabling provision, it did oblige the authorities to grant an exemption in all cases where the United Nations sanctions regime so permitted, as a more far-reaching restriction on individual freedom of movement would not have been justified either by the Security Council resolutions or by the public interest and would have been disproportionate in the light of the applicant’s particular situation (see paragraph 52 above). 192. In reality, the IMES and the FOM denied a number of requests for exemption from the entry-and-transit ban that had been submitted by the applicant for medical reasons or in connection with judicial proceedings. He did not appeal against those refusals. Moreover, in the two cases where his requests were accepted, he waived the use of those exemptions (for one and two days respectively), finding that their length was not sufficient for him to make the intended journeys in view of his age and the considerable distance to be covered. The Court can understand that he may have found those exemptions to be insufficient in duration, in view of the above-mentioned factors (see, in particular, paragraph 191 above). 193. It should be pointed out in this connection that, under paragraph 2(b) of Resolution 1390 (2002), the Sanctions Committee was entitled to grant exemptions in specific cases, especially for medical, humanitarian or religious reasons. During the meeting of 22 February 2008 (see paragraph 54 above), a representative of the Federal Department of Foreign Affairs indicated that the applicant could request the Sanctions Committee to grant a broader exemption in view of his particular situation. The applicant did not make any such request, but it does not appear, in particular from the record of that meeting, that the Swiss authorities offered him any assistance to that end. 194. It has been established that the applicant’s name was added to the United Nations list, not on the initiative of Switzerland but on that of the United States of America. Neither has it been disputed that, at least until the adoption of Resolution 1730 (2006), it was for the State of citizenship or residence of the person concerned to approach the Sanctions Committee for the purposes of the delisting procedure. Indeed, in the applicant’s case Switzerland was neither his State of citizenship nor his State of residence, and the Swiss authorities were not therefore competent to undertake such action. However, it does not appear that Switzerland ever sought to encourage Italy to undertake such action or to offer it assistance for that purpose (see, mutatis mutandis, the case of Sayadi and Vinck (Human Rights Committee), § 12, paragraphs 88 to 92 above). It can be seen from the record of the meeting of 22 February 2008 (see paragraph 54 above) that the authorities merely suggested that the applicant contact the Italian Permanent Mission to the United Nations, adding that Italy at that time had a seat on the Security Council. 195. The Court acknowledges that Switzerland, along with other States, made considerable efforts that resulted, after a few years, in improvement to the sanctions regime (see paragraphs 64 and 78 above). It is of the opinion, however, in view of the principle that the Convention protects rights that are not theoretical or illusory but practical and effective (see Artico, cited above, § 33), that it is important in the present case to consider the measures that the national authorities actually took, or sought to take, in response to the applicant’s very specific situation. In this connection, the Court considers in particular that the Swiss authorities did not sufficiently take into account the realities of the case, especially the unique geographical situation of Campione d’Italia, the considerable duration of the measures imposed or the applicant’s nationality, age and health. It further finds that the possibility of deciding how the relevant Security Council resolutions were to be implemented in the domestic legal order should have allowed some alleviation of the sanctions regime applicable to the applicant, having regard to those realities, in order to avoid interference with his private and family life, without however circumventing the binding nature of the relevant resolutions or compliance with the sanctions provided for therein. 196. In the light of the Convention’s special character as a treaty for the collective enforcement of human rights and fundamental freedoms (see, for example, Soering, cited above, § 87, and Ireland v. the United Kingdom, 18 January 1978, § 239, Series A no. 25), the Court finds that the respondent State could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken – or at least had attempted to take – all possible measures to adapt the sanctions regime to the applicant’s individual situation. 197. That finding dispenses the Court from determining the question, raised by the respondent and intervening Governments, of the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the United Nations Charter, on the other. In the Court’s view, the important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonise the obligations that they regarded as divergent (see, in this connection, paragraphs 81 and 170 above). 198. Having regard to all the circumstances of the present case, the Court finds that the restrictions imposed on the applicant’s freedom of movement for a considerable period of time did not strike a fair balance between his right to the protection of his private and family life, on the one hand, and the legitimate aims of the prevention of crime and the protection of Switzerland’s national security and public safety, on the other. Consequently, the interference with his right to respect for private and family life was not proportionate and therefore not necessary in a democratic society. (γ) Conclusion 199. In view of the foregoing, the Court dismisses the Government’s preliminary objection that the application was incompatible ratione materiae with the Convention and, ruling on the merits, finds that there has been a violation of Article 8 of the Convention. Having regard to that conclusion, and notwithstanding that the applicant’s allegation that the addition of his name to the list annexed to the Taliban Ordinance also impugned his honour and reputation constitutes a separate complaint, the Court finds that it does not need to examine that complaint separately. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 200. The applicant complained that he had not had an effective remedy by which to have his Convention complaints examined. He thus alleged that there had been a violation of Article 13, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 201. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It finds, moreover, that no other ground for declaring it inadmissible has been established. The complaint should thus be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 202. The applicant argued, relying on the Al-Nashif v. Bulgaria case (no. 50963/99, 20 June 2002), that the competing interests of the protection of sources and information critical to national security, on the one hand, and the right to an effective remedy, on the other, could be reconciled through a specially adapted procedure. In the present case, however, no such procedure had been available, either before United Nations bodies or before the domestic authorities. 203. He further pointed out that the above-mentioned Sayadi and Vinck case (see paragraphs 88-92 above), where the Human Rights Committee had concluded that an effective remedy was constituted by the court order requiring the Belgian government, which had forwarded the complainants’ names to the Sanctions Committee in the first place, to submit a delisting request to that Committee, was not relevant to the present case for two reasons. Firstly, because he was not complaining that Switzerland had failed to have his name removed from the United Nations list; the Human Rights Committee had clearly confirmed that the relevant authority lay entirely with the Sanctions Committee and not with the State itself. Secondly, in his case, the Federal Court, unlike the Brussels Court of First Instance in Sayadi and Vinck, although observing that the respondent Government were obliged to support the applicant in any endeavour to secure delisting, had not actually ordered it to do so. 204. The applicant thus argued that the conformity of the impugned measures with Articles 3, 8 and 9 of the Convention was not subject to the scrutiny of any domestic court and that, accordingly, there had been a violation of Article 13. (b) The Government 205. In the Government’s submission, Article 13 required that where an individual had an arguable complaint that there had been a violation of the Convention, he or she should have a remedy before a “national authority”. The Government submitted that, having regard to their previous arguments, the applicant’s complaints were not made out. They argued that, should the Court decide not to follow that assessment, there had not in any event been a violation of Article 13 taken in conjunction with Article 8 in the present case. 206. The Government pointed out that the applicant had requested the deletion of his name and those of the organisations with which he was associated from the list annexed to the Taliban Ordinance. That request had apparently been examined by the Federal Court, which had found that the applicant did not have an effective remedy in respect of that issue since, being bound by the Security Council resolutions, it was not able to annul the sanctions imposed on the applicant. The Federal Court had nevertheless emphasised that, in that situation, it was for Switzerland to request the applicant’s delisting or to support such a procedure initiated by him. In this connection, the Government observed that Switzerland was not itself entitled to lodge a delisting request – as the applicant did not have Swiss nationality and did not live in Switzerland – as had been confirmed by the Sanctions Committee. Switzerland had simply had the possibility of supporting a request lodged by the applicant himself, and it had apparently done so by sending his lawyer a formal attestation of the discontinuance of criminal proceedings against him. 2. The Court’s assessment (a) Applicable principles 207. The Court observes that Article 13 guarantees the availability at national level of a remedy by which to complain about a breach of the Convention rights and freedoms. Therefore, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention, but the remedy must in any event be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the State (see Büyükdağ v. Turkey, no. 28340/95, § 64, 21 December 2000, with the cases cited therein, especially Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996 ‑ VI). Under certain conditions, the aggregate of remedies provided for under domestic law may satisfy the requirements of Article 13 (see, in particular, Leander v. Sweden, 26 March 1987, § 77, Series A no. 116). 208. However, Article 13 requires that a remedy be available in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131). It does not go so far as to guarantee a remedy allowing a Contracting State’s laws to be challenged before a national authority on the ground of being contrary to the Convention (see Costello-Roberts, cited above, § 40), but seeks only to ensure that anyone who makes an arguable complaint about a violation of a Convention right will have an effective remedy in the domestic legal order (ibid., § 39). (b) Application of those principles to the present case 209. The Court is of the opinion that, in view of its finding of a violation of Article 8 above, the complaint is arguable. It therefore remains to be ascertained whether the applicant had, under Swiss law, an effective remedy by which to complain of the breaches of his Convention rights. 210. The Court observes that the applicant was able to apply to the national authorities to have his name deleted from the list annexed to the Taliban Ordinance and that this could have provided redress for his complaints under the Convention. However, those authorities did not examine on the merits his complaints concerning the alleged violations of the Convention. In particular, the Federal Court took the view that whilst it could verify whether Switzerland was bound by the Security Council resolutions, it could not lift the sanctions imposed on the applicant on the ground that they did not respect human rights (see paragraph 50 above). 211. The Federal Court, moreover, expressly acknowledged that the delisting procedure at United Nations level, even after its improvement by the most recent resolutions, could not be regarded as an effective remedy within the meaning of Article 13 of the Convention (ibid.). 212. The Court would further refer to the finding of the CJEC that “it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations” (see the Kadi judgment of the CJEC, § 299, paragraph 86 above). The Court is of the opinion that the same reasoning must be applied, mutatis mutandis, to the present case, more specifically to the review by the Swiss authorities of the conformity of the Taliban Ordinance with the Convention. It further finds that there was nothing in the Security Council Resolutions to prevent the Swiss authorities from introducing mechanisms to verify the measures taken at national level pursuant to those Resolutions. 213. Having regard to the foregoing, the Court finds that the applicant did not have any effective means of obtaining the removal of his name from the list annexed to the Taliban Ordinance and therefore no remedy in respect of the Convention violations that he alleged (see, mutatis mutandis, Lord Hope, in the main part of the Ahmed and others judgment, §§ 81-82, paragraph 96 above). 214. Accordingly, the Court dismisses the preliminary objection raised by the Government as to the non-exhaustion of domestic remedies and, ruling on the merits, finds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 8. IV. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 215. Relying on Article 5 § 1 of the Convention, the applicant argued that by preventing him from entering or transiting through Switzerland, because his name was on the Sanctions Committee’s list, the Swiss authorities had deprived him of his liberty. Under Article 5 § 4, he complained that the authorities had not undertaken any review of the lawfulness of the restrictions to his freedom of movement. Those provisions read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...” 1. Submissions of the parties and third-party interveners (a) The Government 216. The Government, referring to the Guzzardi v. Italy (6 November 1980, Series A no. 39) and S.F. v. Switzerland (no. 16360/90, Commission decision of 2 March 1994, Decisions and Reports 76-B, pp. 13 et seq.) cases, argued that there had been no “deprivation of liberty” in the present case. They stated that the purpose of the measure in question had never been to confine the applicant to the territory of Campione d’Italia. Only a ban on entering and transiting through Switzerland had been imposed on him. The fact that the applicant found that his movements were restricted by the impugned measure was attributable only to himself, because he had chosen to live in an Italian enclave surrounded by Swiss territory. Neither the sanctions as decided by the United Nations, nor their implementation by the Swiss authorities, had obliged him to remain a resident of Campione d’Italia. At any time he could thus have requested authorisation to transfer his home to another part of Italy. 217. As regards the effects and conditions of the measure, the Government observed that the applicant was not subject to any restriction apart from the ban – albeit theoretical in their view – on his entry into or transit through Switzerland. In particular, he was not under surveillance by the Swiss authorities, had no specific obligations and could have received as many visits as he wished. He was also able, at all times, to meet his lawyers freely. The Government further pointed out that the border between Campione d’Italia and Switzerland was not patrolled, so the ban on entry into Switzerland could not have been perceived by him as a physical obstacle. 218. For those reasons the Government contended that the impugned measure could not be regarded as a deprivation of liberty within the meaning of Article 5 § 1. (b) The applicant 219. The applicant argued that the present case could not be compared to S.F. v. Switzerland (cited above), in which the Commission had declared inadmissible the complaint of an applicant under Article 5 that he had not been authorised to leave Campione d’Italia for several years. Firstly, in the applicant’s case the inability to leave the area was not the result of a criminal conviction and, secondly, he had been unable to challenge the impugned restrictions in the context of a fair hearing, unlike the applicant in S.F. v. Switzerland. 220. The applicant did not dispute the fact that no physical obstacle prevented him from leaving Campione d’Italia, but he pointed out that the border with Switzerland was nevertheless occasionally subject to spot-checks and that, if it had been discovered in the context of such a check that he was attempting to enter a territory from which he was banned, he would have faced proceedings entailing heavy penalties. 221. The applicant stated that Campione d’Italia had a surface area of 1.6 sq. km and that, therefore, the space in which he could move freely was even smaller than that of the applicant in Guzzardi (cited above), who was on an island of 2.5 sq. km. 222. Moreover, the applicant pointed out that even the Federal Court itself had recognised that the restrictions amounted in effect to house arrest. For all those reasons, he contended that Article 5 § 1 should be applicable in his case. (c) The French Government 223. The French Government, intervening as a third party, were of the opinion that Article 5 of the Convention could not be applicable to the situation of a person who was refused entry into or transit through a given territory, and that the particular circumstances of the case, stemming from the applicant’s residence in an Italian enclave within the Canton of Ticino, could not change that assessment, unless the substance of that provision were to be substantially distorted. 2. The Court’s assessment 224. The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. The text of Article 5 makes it clear that the guarantees it contains apply to “everyone”. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty. No deprivation of liberty will be compatible with Article 5 § 1 unless it falls within one of those grounds or is provided for by a lawful derogation under Article 15 of the Convention, which allows for a Contracting State “[i]n time of war or other public emergency threatening the life of the nation” to take measures derogating from its obligations under Article 5 “to the extent strictly required by the exigencies of the situation” (see, among other authorities, Al-Jedda, cited above, § 99; A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 162-63, ECHR 2009; and Ireland v. the United Kingdom, cited above, § 194). 225. Article 5 § 1 is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4, a Protocol not ratified by Switzerland. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, ECHR 2012; Stanev v. Bulgaria [GC], no. 36760/06, § 115, ECHR 2012; Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010; Guzzardi, cited above, §§ 92 ‑ 93; Storck v. Germany, no. 61603/00, § 71, ECHR 2005 ‑ V; and Engel and Others v. the Netherlands, 8 June 1976, § 59, Series A no. 22). 226. The Court is further of the view that the requirement to take account of the “type” and “manner of implementation” of the measure in question (see Engel and Others, § 59, and Guzzardi, § 92, both cited above) enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell (see, for example, Engel and Others, § 59, and Amuur, § 43, both cited above). Indeed, the context in which the measure is taken is an important factor, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see, mutatis mutandis, Austin and Others, cited above, § 59). 227. The Court observes that, in support of his argument that Article 5 must apply in the present case, the applicant relied particularly on the above-cited Guzzardi case. In that case, the application had been lodged by an individual who, being suspected of belonging to a “band of mafiosi”, had been forced to live on an island within an (unfenced) area of 2.5 sq. km, together with other residents in a similar situation and supervisory staff. The Court found that the applicant had been “deprived of his liberty” within the meaning of Article 5 and that he could therefore rely on the guarantees under that provision (see also Giulia Manzoni v. Italy, 1 July 1997, §§ 18 ‑ 25, Reports 1997 ‑ IV). 228. By contrast, in the S.F. v. Switzerland case (cited above), where the applicant complained about not being authorised to leave Campione d’Italia for several years, the Commission declared the complaint inadmissible, finding that Article 5 was not applicable in that case. The Grand Chamber finds it appropriate in the present case to opt for the latter approach, for the following reasons. 229. In the applicant’s concrete situation, the Court acknowledges that the restrictions were maintained for a considerable length of time. However, it observes that the area in which the applicant was not allowed to travel was the territory of a third country, Switzerland, and that, under international law, that country had the right to prevent the entry of an alien (see paragraph 164 above). The restrictions in question did not prevent the applicant from freely living and moving within the territory of his permanent residence, where he had chosen, of his own free will, to live and carry on his activities. The Court considers that, in these circumstances, his case differs radically from the factual situation in Guzzardi (cited above) and that the prohibition imposed upon the applicant does not raise an issue under Article 5 of the Convention. 230. The Court further recognises that Campione d’Italia represents a small area of territory. However, it observes that the applicant was not, strictly speaking, in a situation of detention, nor was he actually under house arrest: he was merely prohibited from entering or transiting through a given territory, and as a result of that measure he was unable to leave the enclave. 231. In addition, the Court notes that the applicant did not dispute before it the Swiss Government’s assertion that he had not been subjected to any surveillance by the Swiss authorities and had not been obliged to report regularly to the police (contrast Guzzardi, cited above, § 95). Nor does it appear, moreover, that he was restricted in his freedom to receive visitors, whether his family, his doctors or his lawyers (ibid.). 232. Lastly, the Court would point out that the sanctions regime permitted the applicant to seek exemptions from the entry or transit ban and that such exemptions were indeed granted to him on two occasions but he did not make use of them. 233. Having regard to all the circumstances of the present case, and in accordance with its case-law, the Court, like the Federal Court (see paragraph 48 above), finds that the applicant was not “deprived of his liberty” within the meaning of Article 5 § 1 by the measure prohibiting him from entering and transiting through Switzerland. 234. It follows that the complaints under Article 5 of the Convention are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 235. Relying essentially on the same arguments as those examined by the Court under Articles 5 and 8, the applicant complained of treatment in breach of Article 3. He further alleged that his inability to leave the enclave of Campione d’Italia to go to a mosque had breached his freedom to manifest his religion or belief as guaranteed by Article 9. 236. In view of all the material in its possession, and even supposing that those complaints had been duly raised before the domestic courts, the Court does not find any appearance of a violation of Articles 3 and 9 of the Convention. 237. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 238. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 239. The applicant did not submit any claim in respect of pecuniary or non-pecuniary damage. 240. Accordingly, there is no call to award him any sum on that account. B. Costs and expenses 241. As regards costs and expenses, the applicant sought the reimbursement of 75,000 pounds sterling plus value-added tax, for his lawyers’ fees in connection with the proceedings before the Court, together with 688.22 euros (EUR) for expenses incurred by his lawyer in travelling to Campione d’Italia, for telephone calls and for office expenses. 242. The Government pointed out that the applicant had chosen to be represented by a lawyer practising in London who charged an hourly rate that was much higher than the average rates in Switzerland, and that this choice had entailed considerable travel expenses. In their submission, even if it were to be accepted that the present case was indeed as complex as the applicant claimed, the number of hours invoiced was excessive. Consequently, they submitted that in the event of the application being upheld, an amount of no more than 10,000 Swiss francs would be a fair award. 243. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses incurred before the national courts for the prevention or redress of that violation by them (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 159, ECHR 2010). Moreover, such costs and expenses must have been actually and necessarily incurred and must be reasonable as to quantum (ibid.). 244. The Court does not share the Government’s opinion that the applicant should assume the consequences of his choice to be represented by a British lawyer. It would point out in this connection that, under Rule 36 § 4 (a) of the Rules of Court, the applicant’s representative must be “an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them ...”. However, it notes that only the complaints submitted under Articles 8 and 13 resulted, in the present case, in a finding of a violation of the Convention. The remainder of the application is inadmissible. The sum claimed by the applicant is therefore excessive. 245. Consequently, having regard to the material in its possession and the criteria set out above, the Court finds it reasonable to award the applicant the sum of EUR 30,000 for the costs and expenses he has incurred in the proceedings before it. C. Default interest 246. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, and a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 8. It observed in particular that Switzerland could not simply rely on the binding nature of the Security Council resolutions, but should have taken all possible measures, within the latitude available to it, to adapt the sanctions regime to the applicant’s individual situation. Furthermore, the applicant did not have any effective means of obtaining the removal of his name and therefore no remedy in respect of the violations of his rights. Lastly, the Court declared inadmissible the applicant’s complaints under Article 5 (right to liberty and security) of the Convention, finding, like the Swiss Federal Court, that the applicant had not been “deprived of his liberty” within the meaning of Article 5 § 1 by the measure prohibiting him from entering and transiting through Switzerland. |
912 | Tribunal established by law | RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic materialsThe Constitution The Constitution The Constitution 93. In implementation of the Assessment Report and the Reform Strategy, Parliament intended to adopt constitutional amendments, which would cover several areas, including the transitional re-evaluation of judges and prosecutors (“vetting”). Venice Commission opinion 94. Further to a request for an opinion on the compatibility of the draft constitutional amendments with international standards, which was made by the chairman of the ad hoc parliamentary committee, on 14 March 2016 the European Commission for Democracy Through Law (the “Venice Commission”) adopted a final opinion on the revised draft constitutional amendments (Opinion no. 824/2015 – CDL-AD (2016)009), after issuing an interim opinion on 21 December 2015 (CDL-AD (2015)045). 95. The Venice Commission considered appropriate the proposed institutional structure for carrying out the vetting process, stressing that it was for the national legislator to design checks and balances, since a system affected by widespread corruption might need more external control mechanisms than a healthier system. The Venice Commission found that the draft constitutional amendments were by and large coherent and compatible with European standards, as they contained sound proposals for the future institutional design of the Albanian judiciary. 96. With regard to the extraordinary measures to vet judges and prosecutors, the Venice Commission remained of the opinion that such measures “[were] not only justified but [were] necessary for Albania to protect itself from the scourge of corruption which, if not addressed, could completely destroy [the] judicial system”. The Venice Commission made a general remark as regards the mandate of the members of the IQC and Appeal Chamber. The proposed term of nine years, without the right of reappointment, was long, considering that vetting was “an extraordinary and strictly temporary measure” and that the entire vetting process was “supposed to last 11 years or less if Albania join[ed] the European Union on an earlier date”. The Venice Commission further stated that the vetting structures should not replace ordinary constitutional bodies; while they might co-exist with them for some time, they should not turn into parallel quasi-permanent mechanisms. Following the winding up of the vetting bodies, ordinary institutions and courts might assume any residual function of deciding on the vetting procedures which had not been concluded. 97. The Venice Commission welcomed the creation of a separate appellate body, namely the Appeal Chamber, which was in line with its recommendation in the interim opinion. It stated as follows: “This body is evidently a sort of a specialised court which is not an ad hoc extraordinary judge – because it is not created in view of a single specific case – and it is supposed to stay in activity during the whole duration of the vetting [process].” 98. As the Appeal Chamber became a clearly distinct body from the IQC, the Venice Commission recommended, amongst other things, that judges of the Appeal Chamber should be able to integrate the judiciary automatically at the end of their mandate. 99. In the interim opinion, the Venice Commission had stated that: “to the extent that ... re-evaluation is a general measure, applied equally to all judges, decided at the constitutional level, and accompanied by certain procedural safeguards and not related to any specific case a judge might have before him or her, the Venice Commission does not see how this measure may be interpreted as affecting the judge ’ s independence to an extent incompatible with Article 6 [of the Convention]. This does not, however, exclude the possibility that the vetting procedure might on a particular occasion be abused in order to influence the judge ’ s position in a particular case: if such allegations were proven, this might require the reopening of that particular case since the judge would not be an ‘ independent tribunal ’ .” Ad hoc Parliamentary Committee report on the draft constitutional amendments [4] 100. The ad hoc parliamentary committee ’ s report on the proposed constitutional amendments stated that the transitional re-evaluation of judges and prosecutors constituted one of the measures to achieve professionalism and make the justice system immune from the influence of political interests, corrupt practices and organised crime. Overview of constitutional amendments 101. On 22 July 2016 Parliament unanimously passed a number of constitutional amendments (Law no. 76/2016). Of relevance to the present case are Article 179/b of the Constitution and the Annex to the Constitution. (a) Article 179/b of the Constitution 102. Article 179/b provides for the establishment of a re-evaluation system of all judges, including Constitutional Court judges and Supreme Court judges, as well as of all prosecutors, including the Prosecutor General, with a view to “guaranteeing the functioning of the rule of law, the independence of the justice system, and the restoration of public trust in the institutions [of that system]”. Legal advisors and assistants are to be automatically subject to re-evaluation. Failure to pass the re-evaluation process will constitute a reason for immediate termination of employment ( mbarim të menjëhershëm të ushtrimit të detyrës ), in addition to the grounds provided for in the Constitution. Judges and prosecutors who pass the re-evaluation process will remain in office or be appointed judge or prosecutor, as the case may be. 103. Under Article 179/b, re-evaluation is to be carried out by an Independent Qualification Commission (“IQC”) at first instance and a Special Appeal Chamber (“the Appeal Chamber”), attached as a separate chamber to the Constitutional Court, which will hear appeals against IQC decisions. Both the IQC and Appeal Chamber will be independent and impartial. The IQC members and the Public Commissioners, who represent the public interest, will serve for a five-year term, whereas the term of office of the Appeal Chamber ’ s members will be nine years. (b) Annex to the Constitution 104. The Annex to the Constitution, which is entirely devoted to the transitional re-evaluation of judges and prosecutors, consists of ten Articles named after the letters of the Albanian alphabet. Article A provides that a number of constitutional provisions, notably those relating to the right to respect for private life and the burden of proof, would be partly restricted. Persons who pass the re-evaluation process will be subject to a permanent system of accountability, as provided for in the Constitution and other statutes. 105. Article B governs the establishment of an International Monitoring Operation (“IMO”), led by the European Commission, to support, monitor and supervise the re-evaluation process. The IMO will appoint international observers after giving notice to the Government. International observers will have the right to ( i ) give recommendations to Parliament on the qualification and selection of candidates for the position of members of the vetting bodies or the position of Public Commissioner, (ii) make findings and give opinions on matters being considered by the vetting bodies, (iii) make recommendations to the Public Commissioner to file an appeal against the IQC ’ s decision and (iv) access and obtain all information needed to monitor the re-evaluation proceedings in their entirety. They may also ask the vetting bodies to obtain new evidence or may submit new evidence for their consideration. 106. Article C provides that the IQC will be composed of four panels, each consisting of three members. Two Public Commissioners, who will represent the public interest, may appeal against an IQC decision. The work of the IQC and Appeal Chamber will be guided by the “principles of accountability, integrity and transparency in order to establish an independent and professional justice system, free of corruption”. The IQC members and Public Commissioners will enjoy the status of Supreme Court judges, and the Appeal Chamber members the status of Constitutional Court judges. Under Article C § 4, the members of the vetting bodies and the Public Commissioners and staff members thereof would sign an authorisation subjecting themselves to an annual audit of their assets, regular monitoring of their financial transactions and bank accounts and restrictions on their right to confidentiality of communications during their mandate. 107. Under Article Ç § 1, re-evaluation will consist of an evaluation of assets, an integrity background check and an evaluation of professional competence. Article Ç § 2 provides that the IQC and Appeal Chamber will publish all their decisions. Any information, including complaints, from members of the public will be accepted by ensuring respect for the principle of proportionality, privacy and the need to carry out the investigation, as well as by guaranteeing the right to a fair hearing. The IQC or Appeal Chamber will evaluate the declarations (to be) filed by persons to be vetted, interview the persons named in the declarations or other persons/entities, and cooperate with national or international institutions in order to verify the truthfulness and accuracy of the declarations. Under Article Ç § 5, under certain circumstances, the burden of proof may be shifted to the person being vetted, only in so far as the re-evaluation process is concerned, to the exclusion of any other process, in particular criminal proceedings. 108. Article D, which governs the evaluation of assets, reads as follows: Article D – Evaluation of assets “ 1. Persons to be vetted shall disclose their assets, and have them evaluated, in order to identify persons who possess or use more assets than can be lawfully justified, or those who have failed to make an accurate and full disclosure of their assets and those of related persons. 2. The person to be vetted shall file a new and detailed declaration of assets in accordance with the law. The High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest shall verify the declaration of assets and provide the [IQC] with a report concerning the lawfulness of the assets, as well as the accuracy and completeness of the asset disclosure. 3. The person being vetted shall provide convincing explanations concerning the lawful source of his or her assets and income. For the purposes of this law, assets will be considered lawful if the income has been declared and subject to the payment of taxes. Additional elements of lawful assets shall be determined by law. 4. If the person being vetted has [total] assets greater than twice the value of lawful assets, the person shall be presumed guilty ( fajtor ) of a disciplinary breach, unless [he or she] submits evidence to the contrary. 5. If the person to be vetted does not file the declaration of assets within the time-limit prescribed by law, [he or she] shall be dismissed from office. If the person being vetted endeavours to conceal or make an inaccurate disclosure of assets in his or her ownership, possession or use, a presumption in favour of the disciplinary sanction of dismissal from office ( shkarkim ) shall apply and the person will be required to prove the contrary.” 109. Article DH § 1 requires persons to be vetted to file an integrity background declaration in order to identify “inappropriate contact with individuals involved in organised crime”. The integrity background check is based on the integrity background declaration and other evidence, including decisions of the domestic and foreign courts. Under Article DH § 2, the integrity background declaration will be filed with the IQC and covers the period from 1 January 2012 to the date on which the person to be vetted submits the declaration. The declaration will only be used as evidence in the vetting process and may under no circumstances be used in criminal proceedings. Under Article DH § 3, if a person being vetted is found to “have inappropriate links with persons involved in organised crime, a presumption in favour of the disciplinary sanction of dismissal from office shall apply and the person will be required to prove the contrary”. Article DH § 4 states that if the person to be vetted does not file the integrity background declaration within the time-limit prescribed by law, he or she will be dismissed from office. 110. Article E provides that persons to be vetted will also undergo an evaluation of their professional competence in order to identify persons who are not qualified to perform their tasks or persons who lack professional knowledge which can be remedied through further education. The evaluation of professional competence will be carried out by the institutions responsible for the ethical and professional performance appraisal of judges and prosecutors. Under Article E § 3, if the person being vetted is found to have manifested poor knowledge, skills, judgment or aptitude, or to have adopted working methods incompatible with his or her position, these will constitute professional shortcomings. In such cases, a presumption in favour of the imposition of the disciplinary sanction of suspension from office, accompanied by the obligation to attend an education programme, will apply and the person being vetted will be required to prove the contrary. Under Article E § 4, if the person being vetted is found to have manifested inadequate knowledge, skills, judgment or aptitude or adopted working methods incompatible with his or her position which cannot be remedied through a one-year education programme, a presumption in favour of the imposition of the disciplinary sanction of dismissal from office ( shkarkim ) will apply. 111. Article Ë § 1 provides that on the conclusion of proceedings the IQC or Appeal Chamber may impose one of the following disciplinary sanctions: suspension from office for one year accompanied by mandatory education, or dismissal from office ( shkarkimin nga detyra ). The decision will be reasoned. Under Article Ë § 3, dismissal from office will not constitute a reason for reopening cases which may have been decided by a judge or investigated by a prosecutor, unless the reopening request was based on other grounds prescribed by law. 112. Under Article F, the Appeal Chamber will consist of seven members and will be the only judicial body responsible for examining appeals against IQC decisions, which may be lodged by the person being vetted or the Public Commissioner. The Appeal Chamber will sit in formations composed of five members. Under Article F § 3, the Appeal Chamber may request that additional facts or evidence be obtained and may remedy procedural faults ( gabim procedural ) committed by the IQC. The Appeal Chamber will decide on the appeal and will not remit the case to the IQC for re-examination. Article F § 7 provides that the Appeal Chamber may uphold, amend or quash the IQC ’ s decision, by giving a reasoned decision in writing. 113. Article G provides that a person to be vetted may resign. In this case, re-evaluation will be discontinued ( ndërpritet ) and the person “shall not be reappointed to work as a judge or prosecutor ... for a period of fifteen years”. The Transitional Re-evaluation of Judges and Prosecutors Act (Law no. 84/2016 – “The Vetting Act”) 114. Pursuant to Article 179/b of the Constitution, on 30 August 2016 Parliament passed the Vetting Act, which, following its publication in the Official Journal, entered into force on 8 October 2016. Ad hoc parliamentary committee report [5] 115. The ad hoc parliamentary committee report stated that the draft law was necessary in order to provide detailed regulation of the constitutional provisions found in Article 179/b of the Constitution and the Annex to the Constitution. The draft law was to lay down the principles for carrying out the re-evaluation process of judges and prosecutors, the methodology and standard procedures for the re-evaluation process, the organisation and functioning of the vetting bodies, as well as the role of the International Monitoring Operation (“IMO”). It was submitted as part of a set of six essential statutes in relation to the implementation of the constitutional amendments. 116. The main goal of the draft law was to ensure the functioning of the rule of law, the independence of the justice system and the restoration of public trust in the justice system. This would be achieved by carrying out a transitional re-evaluation of all serving judges and prosecutors with a view to establishing an independent, efficient, trustworthy and honest justice system, which would operate with integrity and free of external influence from organised crime and politics. Explanatory report [6] 117. The explanatory report to the draft law stated that the reform of the justice system, as described in the Assessment Report, had been chiefly prompted by the need to address the high prevalence of corruption in the justice system. The existence and prevalence of corruption was not only a matter of public perception and that of court users, but also a fact acknowledged by judges, who considered that the justice system was not free of external influence. Other reasons related to the unsatisfactory performance of judges and prosecutors, as well as the non-functioning of existing effective mechanisms to appraise their performance and hold them accountable for breaches of the law. 118. The aim of the draft law was to lay down special rules for the re-evaluation of all serving judges and prosecutors, as well as other persons who would be subject to re-evaluation pursuant to Article 179/b of the Constitution. This process would serve the purpose of evaluating their professional performance, moral integrity and identifying their level of independence from the influence of organised crime, corruption and politics. The draft law would lay down the principles for the carrying out of, and procedures for, re-evaluation. The re-evaluation process would be carried out effectively without impinging on the standards of the right to a fair hearing, so that the outcome of the process would serve as the cornerstone for establishing an independent judicial system, which would operate efficiently and trustworthily and embody the highest standards of honesty, integrity, professionalism and transparency. 119. Owing to its exceptional nature, this would be a special statute with time-limited effect lasting until the conclusion of the re-evaluation process of all serving judges, prosecutors and other functions provided for in the Constitution. The draft law would set up a number of institutions which would carry out the comprehensive re-evaluation of judges and prosecutors. Overview of the Vetting Act 120. Section 1 states that the purpose of the Vetting Act is “ to determine specific rules for carrying out the transitional re-evaluation of all persons to be vetted, in order to guarantee the proper functioning of the rule of law, the true independence of the justice system, as well as the restoration of public trust in the institutions of [that] system ... ”. 121. Section 3 contains some definitions, the most relevant of which for the purpose of this judgment are the following: “ ‘ Asset ’ shall mean all real estate and movable properties in the Republic of Albania and abroad, as described in section 4 of the [Asset Disclosure Act - see paragraph 202 below], as amended, which are in the ownership, possession or use of the person to be vetted; ‘ Related persons ’ shall mean the circle of individuals related to the person to be vetted, public commissioner or judge, consisting of the spouse, live-in partner, adult children, as well as any other individual whose name appears on the family certificate as provided by the civil registry office to the person to be vetted, commissioners, public commissioners or judges for the period of re-evaluation; ‘ Other related persons ’ shall mean any natural or legal person who appears to have or to have had links of interest with the person to be vetted, commissioners, public commissioners or judges, resulting from any proprietary interest or business relationship.” (a) Vetting bodies 122. Section 5 specifies the bodies involved in the vetting process: an Independent Qualification Commission (“IQC”), a Special Appeal Chamber (“Appeal Chamber”), Public Commissioners and an International Monitoring Operation (“IMO”). 123. Section 6 sets out the eligibility criteria that a person must satisfy in order to apply for and be appointed as a member of the vetting bodies. An Albanian national may be appointed as a member of the vetting bodies, provided that he or she, inter alia : ( i ) has completed a second-cycle (master ’ s) degree in law at university; (ii) has acquired at least fifteen years ’ professional experience as a judge, prosecutor, lawyer, professor of law, senior-level civil servant or other recognised experience in the field of administrative law or in other fields of law; (iii) has not held political office in the public administration or a leadership position in a political party during the last ten years; (iv) is not under criminal investigation and has not been convicted of a crime [or] wilful criminal misdemeanour by a final court decision ...; (v) has not been subject to the disciplinary sanction of dismissal from office or any other disciplinary sanction still in force under the law at the time it was imposed; (vi) has not been a judge, prosecutor, legal advisor or assistant during the two years preceding the application; and (vii) has a very good command of English. 124. Sections 7 to 12 regulate the procedure for the application, preselection, interviewing and election of candidates. The members of the vetting bodies are to be elected by Parliament. 125. Section 4(2) provides that the IQC and Appeal Chamber are the institutions which will decide on the final re-evaluation of persons to be vetted. Under section 4(5), both the IQC and Appeal Chamber will exercise their functions as independent and impartial institutions, on the basis of the principles of equality before the law, constitutionality, lawfulness, proportionality and other principles guaranteeing the right to a fair hearing of the person being vetted. Under section 4(6), the vetting bodies may apply the procedures provided for in the Code of Administrative Procedure or the Administrative Courts Act whenever those procedures are not referred to in the Constitution or the Vetting Act. Section 27 provides that members of the vetting bodies are to declare and avoid any situation of conflict of interest. Section 28 provides that their electronic communications and declaration of annual income will be monitored subject to a privacy waiver being signed by them. 126. Section 14 provides that the IQC will be composed of twelve members, who are to hear cases in panels composed of three members each. Cases will be allocated by drawing lots and a rapporteur will be assigned to each case. Section 15 provides that the Appeal Chamber will hear cases in panels composed of five members, who are to be drawn by lots. A rapporteur will be assigned to each case. 127. Section 16 specifies the grounds of disciplinary liability of members of the vetting bodies, and section 17 sets out the procedure for their removal as a result of an alleged disciplinary breach. The decision in favour of a disciplinary sanction is to be taken by a three-member panel of the Appeal Chamber. 128. Section 18 provides that the vetting bodies have discretion to decide on their organisational structure and employment of personnel. Under section 19, they propose their annual draft budget to Parliament, which decides on it as an integral part of the State budget. Under section 22, a legal service unit is to be set up within the IQC and Appeal Chamber to help its members in the decision-making process. (b) IMO 129. Under section 45(2), the international observers, who are members of the IMO, may seek information during the administrative investigation. Under section 50(7), they may also request international cooperation in reliance on international agreements or by way of diplomatic channels. Under section 33(3), they have a right of access to all information in the possession of HIDAACI. Under section 50, they also have the same right of access to information as the vetting bodies. 130. Under section 49(10), the international observers may file findings with the vetting bodies, which will admit them as evidence. The findings have the procedural value of an expert report and can be rejected by way of a reasoned decision. A written opinion given by an international observer may affect the decision-making process, but it has no evidentiary value. 131. Section 55 states that the international observers are informed when a public hearing is to be held before the IQC. Their presence is required in the deliberations, and they may append a separate opinion to the IQC ’ s decision. Under section 65(2), a panel composed of three international observers may recommend that the Public Commissioner file an appeal against the IQC ’ s decision. 132. Section 17 states that the international observers may also institute disciplinary proceedings against members of the vetting bodies, including the Public Commissioners. (c) Re-evaluation criteria 133. Under section 4(1), the transitional re-evaluation is to be carried out on the basis of three criteria: an evaluation of assets, an integrity background check and an evaluation of professional competence. Section 4(2) provides that a decision will be taken on the basis of “only one criterion or several criteria, an overall evaluation of all three criteria or the overall conduct of the proceedings ( ose në vlerësimin tërësor të procedurave )”. 134. Persons to be vetted are required to file, within three months of entry into force of the Vetting Act, a declaration of assets as per Annex 2 to the Act, an integrity background declaration as per Annex 3 to the Act and a professional self-appraisal form as per Annex 4 to the Act. The declaration of assets consists of information relating to the person ’ s assets and their origin, a description of the person ’ s income and liabilities, and a list of other related persons. The integrity background declaration comprises information relating to the person ’ s particular details, address history, education and other qualifications, employment history and questions concerning links to organised crime. The professional self-appraisal form contains information about the person ’ s employment history and questions concerning a description of his or her duties, statistical figures relating to the number of cases processed, training attended and qualifications attained. (i) Evaluation of assets 135. Section 30 states that the objective of the evaluation of assets is the disclosure and audit of assets, the lawfulness of the source used for their acquisition or creation, the fulfilment of financial obligations, including private interests, of the person being vetted and related persons. Under section 31(1), the person to be vetted must file a declaration of assets, as per Annex 2 to the Act, within thirty days of its entry into force, with the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“HIDAACI”). 136. Section 32 states as follows: “1. The person being vetted as well as related persons shall submit all supporting documents justifying the truthfulness of their statements concerning the lawfulness of the source [used for] the creation of assets. 2. If the person being vetted faces an objective impossibility ( është në pamundësi objektive ) to submit supporting documents justifying the lawfulness of the creation of assets, the person shall certify to the vetting body that the supporting document is missing, lost or cannot be reproduced or obtained in any other way. The vetting bodies shall decide whether the absence of supporting documents is justified ... ... 4. The person being vetted and related persons, or other persons, who have been named as donors, lenders or borrowers, are obliged to justify the lawfulness of the source [used for] the creation of assets. 5. The IQC and Appeal Chamber may use as evidence prior annual asset disclosure declarations submitted to HIDAACI. 137. Section 33 states that HIDAACI is the institution responsible for verifying the declaration of assets. Under section 33(5), HIDAACI, upon completion of the evaluation, will draw up a reasoned and detailed report stating whether ( i ) the disclosure has been accurate, in compliance with the law and with lawful financial sources, and whether there is any conflict of interest; (ii) there is a lack of lawful financial sources to justify the assets; (iii) there has been a concealment of assets; (iv) the person being vetted has made a false declaration; (v) the person being vetted has been involved in a conflict of interest. (ii) Integrity background check 138. Section 34 states that the objective of the integrity background check is the verification of statements in order to identify persons who have had inappropriate contact with individuals involved in organised crime, as provided for in Article DH of the Annex to the Constitution. Under section 35(1), the person to be vetted will file, within thirty days of entry into force of the Vetting Act, an integrity background declaration, as per Annex 3, with the Classified Information Security Directorate (“CISD”). 139. Under section 36(1), the vetting bodies, in cooperation with CISD, are responsible for administering the integrity background checks. Section 36(2) provides that a working group composed of representatives from CISD, the State Intelligence Service and the Internal Affairs Audit and Complaints Service of the Ministry of the Internal Affairs, will be set up to carry out the integrity background checks. Section 36(3) states that CISD, at the request of the working group, has the right to obtain information from other countries about individuals involved in organised crime or individuals suspected of involvement in organised crime. 140. Section 38 states that the integrity background check will be based on accurate evidence, confidential information as well as other available intelligence. 141. Under section 39, CISD will submit a report to the IQC stating ( i ) whether the person being vetted has completed the integrity background declaration accurately and truthfully, and (ii) whether there is information in the integrity background declaration, or which has been obtained otherwise, indicating that the person being vetted has had inappropriate contact with individuals involved in organised crime, including a finding relating to his or her suitability to continue or not in the position. Information will not be disclosed if it poses a risk to the safety of the source, or would contravene a non-disclosure undertaking imposed by a foreign government. (iii) Evaluation of professional competence 142. Section 41(1) requires the person to be vetted to file, within thirty days of entry into force of the Vetting Act, a professional self-appraisal form with the responsible authority. Section 41(3) states that the period for the evaluation of professional competence will cover the last three years of the person ’ s professional experience. However, section 41(4) states that, depending on whether there is available information about the ethics and professional competence of the person being vetted, the period for the evaluation of professional competence may commence from 1 January 2006. 143. Under section 43, the evaluation of professional competence is carried out in accordance with the legislation governing the status of judges and prosecutors. Under section 44, a report is submitted to the IQC, the rapporteur of which proposes to find that the person being vetted is competent, lacking in competence or unfit for work ( i aftë, me mangësi, ose i papërshtatshëm ). (d) Conduct of re-evaluation proceedings 144. Under section 45(1), the IQC, the Appeal Chamber and the international observers investigate and examine all facts and circumstances necessary for the re-evaluation proceedings. Under section 45(2), they may request information from any public authority. They administer documents attesting to the existence of actions, facts or another situation necessary for the conduct of the administrative investigation. Under section 46, the Vetting Act prioritises communication by email with the person being vetted. 145. Section 47 provides that the rights of the person being vetted are governed by Articles 35 to 40 and 45 to 47 of the Code of Administrative Procedure. Under section 48, the person being vetted must cooperate with the vetting bodies, which will take his or her availability and behaviour into account during the decision-making process. 146. Under section 49(1), the vetting bodies will obtain legal documents, collect statements from the person being vetted, witnesses, experts and members of the public, and receive other written documents in order to determine the facts and circumstances of each case. Under section 49(6)(a), the vetting bodies may decline to admit new evidence if, for example, obtaining it is unnecessary. Under section 49(8), the vetting bodies will provide reasons for rejecting a request to obtain new evidence. Under section 51, if the person being vetted fails to submit any evidence or the evidence made available is incomplete, the vetting bodies may decide on the basis of the evidence made available to them. 147. Section 52 requires the vetting bodies to be governed by the principles of objectivity and proportionality. If they reach the conclusion that the evidence, which has been collected during the administrative investigation in accordance with section 45, has a probative value ( kanë nivelin e provueshmërisë ), the person being vetted has the burden of proof to submit evidence or give other explanations to the contrary. 148. Under section 53, any member of the public who becomes aware of facts or circumstances which may constitute evidence related to the re-evaluation criteria has the right to directly inform the vetting bodies, which will investigate any allegations made against the person being vetted. 149. Section 55 provides that a public hearing will take place before the IQC. IQC members and the international observer may put questions to the person being vetted. (e) Disciplinary sanctions 150. At the conclusion of the re-evaluation proceedings, the IQC gives a reasoned decision, confirming the person being vetted in his or her position, suspending him or her from office for a one-year period with an obligation to attend a training programme run by the School of Magistrates, or dismissing him or her from duty. 151. Under section 61, dismissal from office may be ordered if it appears that: “1. the person being vetted has declared [total] assets greater than twice the value of lawful assets belonging to him or her and related persons; 2. there are serious concerns about the integrity background check, because the person being vetted has had inappropriate contact with individuals involved in organised crime which render it impossible for him or her to continue in his or her position; 3. the person being vetted has made an insufficient disclosure of assets and integrity background [declaration] under sections 39 and 33 of this Act; 4. as regards the evaluation of professional competence, the person being vetted is professionally unfit; 5. on the basis of the overall conduct [of the proceedings], within the meaning of section 4(2) ... the person being vetted has undermined public trust in the justice system and it is impossible to remedy the deficiencies by means of a training programme.” (f) Right to appeal 152. Under section 63, all IQC decisions are amenable to appeal by the person being vetted and/or the Public Commissioner within fifteen days of their notification. The complaint is lodged with the IQC in accordance with the Administrative Courts Act. 153. Section 65(1) states that judicial proceedings before the Appeal Chamber are governed by sections 47, 48, 49, 51 and 55 of the Administrative Courts Act. Section 65(3) provides that in the event of an appeal lodged by the Public Commissioner, the Appeal Chamber will hold a public hearing. 154. Section 66 provides that the Appeal Chamber may, by giving a reasoned decision, decide to uphold, amend or quash the IQC ’ s decision. Proceedings before the Constitutional Court 155. In October 2016 a petition for an abstract constitutional review of the Vetting Act was lodged with the Constitutional Court. The complainants, namely members of parliament belonging to the main opposition party, alleged that the Vetting Act: ( i ) violated the principles of separation and balance of powers and the independence of the judiciary, as it had displaced the control and investigation of the process of re-evaluation of judges from the independent and impartial bodies created by the constitutional amendments to the existing institutions allegedly under government control, such as HIDAACI, CISD, the School of Magistrates, the General Directorate for the Prevention of Money Laundering and the Ministry of Internal Affairs; (ii) breached the principle of legal certainty as the wording of its provisions was unclear, ambiguous and contradictory; (iii) provided for unjustified restrictions on fundamental human rights, in particular as regards the continuous surveillance of private life and restrictions on the right to file a constitutional petition with the Constitutional Court; and (iv) did not provide for any specific procedural rules guaranteeing the right to a fair hearing, the right to appeal and respect for the principle of equality and fundamental human rights, in particular the admissibility of evidence obtained from members of the public, as provided for in sections 53 and 54 of the Vetting Act. (a) Venice Commission amicus curiae brief 156. On 25 October 2016 the Constitutional Court, having regard to serious and irreparable consequences for the fundamental freedoms and rights of persons to which the Vetting Act would apply and the observance of the rule of law, decided to suspend its implementation. 157. Further to an invitation by the President of the Constitutional Court to the Venice Commission to provide an amicus curiae brief on the compliance of the Vetting Act with international standards, including the Convention, on 12 December 2016 the Venice Commission issued the amicus curiae brief (Opinion no. 868/2016 – CDL-AD (2016)036). 158. The Venice Commission stated that both vetting bodies possessed the characteristics of judicial bodies, and would operate and decide independently and impartially. The IQC members and Public Commissioner would have the status of Supreme Court judges. The Appeal Chamber would function as a chamber of the Constitutional Court and its members would have the status of Constitutional Court judges. The members of the vetting bodies would be subject to an annual disclosure of assets which would be made public, as well as constant monitoring of their financial accounts and a waiver of the privacy of their communications related to their work. They would incur disciplinary liability in accordance with the Act, which had also provided for the disclosure of conflicts of interest and their dismissal. 159. The conditions for appointment to the IQC and Appeal Chamber seemed to be equivalent to those for judicial appointment and appeared to be at least as rigorous as those in place for appointments to permanent judicial office. The arrangements for making the appointments appeared to be designed to ensure so far as practicable the appointment of suitably qualified candidates who met the criteria. Procedures had been put in place to allow for appointments by qualified majority in Parliament with an anti-deadlock mechanism. Other than the fact that these would not be permanent institutions, it seemed that the intent of the constitutional and legal provisions was to confer on them the essential characteristics of courts of law. On the expiry of their terms of office any pending cases would be thenceforth dealt with by the permanent judicial and prosecutorial institutions. 160. According to the Venice Commission, under the Vetting Act, the evaluation and assessment of any information or evidence collected by executive bodies would rest with the IQC and Appeal Chamber, which would draw their own conclusions independently. In its view, it was normal and in line with European standards that evidence presented to a court of law would initially be obtained by executive bodies such as the police or prosecutor. This would not amount to an interference with the judicial power provided its evaluation, that is, the assessment of its veracity and the weight to be attached to it, was a matter for judicial determination. Furthermore, the IQC and Appeal Chamber would have extensive powers to investigate and verify matters themselves. That executive bodies were involved in the re-evaluation process seemed to have instrumental and subservient functions aimed at helping the vetting bodies to carry out their mandate. Decision-making power in all cases appeared to remain with the IQC and Appeal Chamber, established for this purpose in accordance with the provisions of the Constitution as independent and impartial judicial bodies. 161. As to whether the Vetting Act guaranteed the right to a fair trial, the Venice Commission stated that the rules concerning the qualifications for and methods of appointment of the members of the vetting bodies were designed to secure that they would be independent and impartial tribunals. Furthermore, the vetting bodies would apply the procedures provided for in the Code of Administrative Procedure and the Administrative Courts Act for the adjudication of individual cases. Furthermore, Article Ç § 2 of the Annex to the Constitution expressly imposed on the IQC and Appeal Chamber a duty to guarantee the right to a fair trial. Although in the re-evaluation proceedings, a presumption in favour of the disciplinary sanction of dismissal would be established in some cases, which the person being vetted would have the burden to dispel, Article Ç § 5 of the Annex to the Constitution clearly provided that this would only apply to the vetting proceedings and not to other proceedings, in particular criminal proceedings. Both vetting bodies would act with transparency; they would establish facts and circumstances in each case for which hearings would be held in public, and their decisions would be reasoned and in writing. 162. As to whether the integrity background check would constitute an unjustified interference with the right for respect of private life, the Venice Commission stated that the existence of inappropriate contact between judges and organised criminals would be contrary to the interests of national security, contrary to public safety, likely to encourage rather than prevent disorder or crime, and likely to threaten rather than protect the rights and freedoms of others. The integrity background declaration would serve as the basis for carrying out the integrity background check. It was important to note that the integrity background declaration would not be used in any criminal proceedings. While a working group was to have the main role in conducting the background check, the use of the assessment would be under the supervision and control of the IQC and Appeal Chamber. In the Venice Commission ’ s view, that some information would not be disclosed would only be reasonable if it was favourable to the person being vetted. It was essential that the rapporteur of a case had access to all documents and material in the possession or control of the working group and that his or her representative attended meetings of the working group. (b) Constitutional Court decision no. 2/2017 163. By decision no. 2 of 18 January 2017 the Constitutional Court decided that, even though its judges would be automatically subject to the vetting process laid down in the Vetting Act, it was competent to examine the request submitted by the opposition party ’ s MPs in so far as the Vetting Act did not preclude the Constitutional Court judges, who would act in good faith, from exercising their duties in interpreting the statutory provisions. (i) As regards an alleged breach of the principle of separation of powers 164. As regards an alleged breach of the principle of separation of powers, the Constitutional Court noted that Article 179/b of the Constitution had expressly empowered the IQC to carry out the re-evaluation of judges and prosecutors at first instance, with the possibility of appealing to the Appeal Chamber attached to the Constitutional Court. The transitional re-evaluation process had been set up as “an extraordinary and temporary measure” to be carried out by the vetting bodies specified in the Constitution. Whereas the Constitution could not lay down exhaustive and detailed provisions relating to the organisation of social and political life, the application thereof would be stipulated in a separate implementing act. The legislature had broad discretion to determine the matters to be governed by a separate implementing act. The Constitutional Court went on to examine each criterion separately. 165. Turning to the evaluation of assets, the Constitutional Court held that Article D of the Annex to the Constitution had empowered HIDAACI to verify the declaration of assets which would be filed by the person to be vetted, regard being had to HIDAACI ’ s expertise, existing infrastructure and responsibilities. The details concerning the exercise of the verification process had been laid down in the Vetting Act, which was not contrary to constitutional provisions. Furthermore, the Constitutional Court valued HIDAACI ’ s independence in collecting and verifying the information provided by the person to be vetted. 166. As regards the evaluation of professional competence, the declaration concerning professional competence (professional self-appraisal form), as completed and filed by the person to be vetted, would be subject to re-evaluation by the responsible body in accordance with Article E of the Annex to the Constitution. Apart from designating the School of Magistrates as responsible for carrying out the testing of legal advisors and assistants, the Constitution had not determined other bodies responsible for evaluating professional competence. Those bodies, which were determined by other statutes, would draw up a detailed and reasoned report and submit it to the IQC, which would have ultimate supervision over the process and determine whether the person being vetted was “competent”, “lacking in competence” or “unfit”. 167. The integrity background assessment would be based on a declaration completed by the person being vetted and other evidence, such as domestic or foreign court decisions, and would be carried out in accordance with Article DH of the Annex to the Constitution. Under section 36(1) of the Vetting Act, the vetting bodies, in cooperation with CISD, would be responsible for the integrity background check. The Constitutional Court accepted that the institutions mentioned in sections 36 of the Vetting Act would play an active role in carrying out the integrity background assessment. It therefore referred to the Venice Commission amicus curiae brief, which stated as follows: “ ... if the process of vetting is conducted or controlled by the executive, the entire process of vetting may be compromised. Therefore, it is important to ensure that the involvement of the executive, in law and in practice, is limited to the extent that is strictly necessary for the effective functioning of the vetting bodies.” 168. Having examined Article Ç § 4 of the Annex to the Constitution and sections 45, 50 and 51 of the Vetting Act, the Constitutional Court concluded that the vetting bodies would maintain the authority to have supervision over the integrity background check. The working group to be established in accordance with section 36 would not give rise to any issues provided that representatives of the IQC were members. This could be secured by the presence of legal advisors who might be asked by the rapporteur of an individual case to attend such meetings. 169. The Constitutional Court therefore concluded that the other bodies involved in the vetting process would assist the vetting bodies in fulfilling their mandate. In all circumstances, with reference to section 4(2) of the Vetting Act and Article 179/b § 5 of the Constitution, decision-making would rest with the IQC and Appeal Chamber, which would be established as independent and impartial institutions. The vetting bodies would perform supervisory and evaluating functions and would not be bound by the findings made by other auxiliary institutions. In so far as law enforcement agencies had an auxiliary role and their activity was subject to supervision by and control of the vetting bodies, they would not be able to commence their activities without the prior constitution of the vetting bodies. 170. Thanks to their purpose, functioning, expertise and tasks, the auxiliary institutions would help the vetting bodies in exercising their constitutional functions and fulfilling their mission in the name of the principle of cooperation, interaction and coordination of all institutions involved in the vetting process. They would not perform their tasks beyond the scrutiny of the IQC and Appeal Chamber. This was all the more important to avoid any potential interference by the executive power with the vetting process, notably as regards the integrity background check, a concern also shared by the Venice Commission. 171. According to the Constitutional Court, the vetting bodies were the only bodies empowered to remove a judge or prosecutor from office. Only they could determine whether the declarations had been filed within the prescribed time-limit. At the end of the proceedings, they would give a reasoned decision describing the entire decision-making. (ii) As regards an alleged breach of the principle of legal certainty 172. The Constitutional Court held that, pursuant to section 42 of the Vetting Act, all serving judges, including those of the Supreme Court and the Constitutional Court, legal advisors and assistants, as well as all serving prosecutors, including the Prosecutor General, would be subject to professional evaluation, which would be carried out by the same institution. The legislation relating to the status of judges and prosecutors would apply, as appropriate. 173. Irrespective of the institutions involved in the vetting process, the Constitutional Court held that the legal provisions did not give rise to ambiguities, misinterpretation or misapplication. At the conclusion of the vetting proceedings, the IQC would give a reasoned decision, containing the evidence serving as the basis for its outcome. In its view, it was essential that an unfavourable evaluation would only be made in cases of fundamental and serious errors and/or when there was clear and consistent pattern of erroneous judgments that indicated a lack of professional competence. 174. The Constitutional Court further clarified that, as a rule, the timespan related to professional evaluation would cover the last three years of professional experience. However, under section 41(4) of the Vetting Act, the vetting bodies could exceptionally decide to have the timespan commence as early as 1 January 2006. In such cases, the information would be examined if the rapporteur or the international observer considered it essential for the evaluation process. (iii) As regards unjustified restrictions on fundamental human rights 175. As regards the restrictions imposed by the Constitution on members of the vetting bodies, the Constitutional Court held that they could not be subject to constitutional review. As regards restrictions imposed by the Vetting Act, the Constitutional Court held that the interference was justified by the public interest of reducing the level of corruption and restoring public trust in the justice system, which in turn was connected to interests of national security, public order and the protection of rights and freedoms of others. The court stressed that it was incumbent on the vetting bodies to observe European standards and case-law. 176. In response to the allegation that there was a breach of the right to appeal, the Constitutional Court held that the Constitution and the Vetting Act provided for the right to appeal against an IQC decision to the Appeal Chamber, which was a special body set up to ensure the wide range of rights and guarantees accorded to persons being vetted, as had also been noted in the Venice Commission amicus curiae brief (see paragraph 161 above). It considered that, having regard to their functioning, the election of their members and powers, the vetting bodies appeared to secure the guarantees required by the right to a fair hearing. Moreover, the Appeal Chamber would decide cases on the merits, as a last resort, and could not remit the case to the IQC for re-examination. As such, the right to appeal could be said to have been adequately secured. 177. As regards a restriction on the right to constitutional petition, the Constitutional Court held that this allegation could not be subject to constitutional scrutiny in so far as it had been provided for in the constitutional amendments. However, taking note of the powers of the Appeal Chamber, which could review decisions taken by the IQC, it considered that this process would be subject to supervision from a constitutional viewpoint. (iv) As regards an alleged breach of the right to a fair hearing 178. The Constitutional Court stated that, pursuant to section 4 of the Vetting Act, the IQC and Appeal Chamber would be independent and impartial and would operate on the basis of the principles of lawfulness and proportionality, as well as other principles guaranteeing the right to a fair hearing of persons being vetted. They would also apply the provisions of the Code of Administrative Procedure and the Administrative Courts Act. Furthermore, the Vetting Act made provision for guaranteeing and respecting the rights of the person to be vetted in its sections 35 to 40, 45 to 47, 55, 57, 63 and 65. 179. While the Vetting Act had not laid down any specific time-limits for the examination of individual cases, the vetting bodies would have a duty to do so within a reasonable time. Re-evaluation was a general measure which would apply equally to all serving judges and prosecutors, without leading to inequalities before the law. 180. In accordance with Article Ç § 2 of the Annex to the Constitution, proportionality between the right for respect of private life and the duty to investigate, as well as the right to a fair hearing, would be observed whenever information was obtained from members of the public under sections 53 and 54 of the Vetting Act. (v) Conclusion 181. The Constitutional Court, having regard to the lawful procedure followed for the enactment of the Vetting Act, as well as the reasons described above, decided by a majority to reject the grounds raised in the petition made by the complainants. (vi) Dissenting opinion 182. Two judges of the Constitutional Court (B.I. and G.D.) appended a dissenting opinion. In their view, the statutory provisions had shifted the investigation and control of the vetting process from the vetting bodies to existing institutions which were controlled by the executive. In support of this argument, they noted that section 35 of the Vetting Act required persons to be vetted to file their integrity background declaration with CISD, whereas Article DH § 2 of the Annex to the Constitution demanded that those persons file that declaration with the IQC. Furthermore, CISD and other bodies, which were controlled by the executive, would commence the verification of the integrity background declarations when the vetting bodies had not yet been constituted. CISD would thus carry out a de facto verification of the integrity background declaration without supervision or control by the vetting bodies. 183. Furthermore, the dissenters took issue with the statutory provisions providing for the dismissal of a person being vetted in the event that he or she failed to file a declaration of assets or the integrity background declaration within thirty days of entry into force of the Vetting Act. In so far as the vetting bodies had not yet been formed, it was unclear how those provisions would apply and how a decision could be taken. For this reason, they argued that the phrase “within thirty days of entry into force” used in sections 31, 35 and 41 of the Vetting Act, should have been repealed. 184. Lastly, the dissenters considered that the fact that the period for the evaluation of professional competence could be extended up to ten years, or longer, gave rise to serious doubts as to respect for the principle of legal certainty. This could also lead to unequal treatment of the persons being vetted. The Appeal Chamber ’ s case-law 185. The summary of the following decisions, which were given by the Appeal Chamber prior to the delivery of the decision in the applicant ’ s case, has been limited to a description of procedural matters in order to avoid prejudicing the outcome of the domestic proceedings in respect of which the persons who were vetted have lodged an application with this Court. (i) Decision no. 3 of 17 July 2018 (no. 3/2018) 186. In its first vetting decision on the merits (no. 3/2018), the Appeal Chamber, pursuant to section 47 of the Administrative Courts Act, declined to admit the appellant ’ s additional evidence to the case file, stating that he had failed to advance any reasonable grounds for his failure to submit that evidence to the IQC. The same finding was also made in decision no. 7/2008, in which the Appeal Chamber further stated, referring to section 49(6) of the Vetting Act, that the additional evidence was not important for the decision-making process. In decision no. 3/2018, the Appeal Chamber decided to dispense with a public hearing. 187. The Appeal Chamber held that, even though the re-evaluation proceedings were to be carried out on the basis of the assessment of the three criteria laid down in the Vetting Act, the final decision could be limited only to one of them. This approach was allowed by the wording of section 4(2) of the Vetting Act and there was no other statutory provision precluding such a course of action. In the appellant ’ s case, the IQC had considered that, on the basis of the evidence in the case file, the re-evaluation could be concluded in respect of the evaluation of assets, there being no need to proceed with the re-evaluation of the remaining criteria. Such a finding was also made in decisions nos. 4/2018 and 8/2018. 188. The Appeal Chamber further held, referring to Article Ç § 4 of the Annex to the Constitution and section 32(5) of the Vetting Act, that the IQC was empowered to use as evidence all prior annual asset declarations submitted by the appellant to HIDAACI in order to verify the truthfulness and accuracy of the vetting asset declaration. This finding was also repeated in decision no. 8/2008. Any prior thorough investigation carried out by HIDAACI in 2011, which could not be said to have acquired the force of res judicata for the purposes of the Vetting Act ( nuk mund të përbëjë gjë të gjykuar në kuadër të ligjit 84/2016 ), did not preclude the IQC from carrying out an in-depth investigation into the three criteria prescribed by the Vetting Act (see also paragraph 191 below). 189. As regards the complaint that no methodology for the determination of income had been determined, the Appeal Chamber held that it was not necessary to determine the application of a methodology, since, under Article D § 3 of the Annex to the Constitution, the appellant had to provide convincing explanations concerning the lawful source of assets and income, which he should have disclosed and in respect of which he should have paid taxes. As the appellant had not been able to demonstrate the existence of such lawful income for the period 1994 to 2003, no prescribed methodology was to apply. (ii) Decision no. 4 of 26 July 2018 (no. 4/2018) 190. In decision no. 4/2018, the Appeal Chamber, in accordance with section 49 of the Administrative Courts Act, decided to dispense with a public hearing in the appellant ’ s case, stating ( i ) that the facts had been fully and accurately established, (ii) that there had been no serious procedural breaches and (iii) that it was not necessary to reopen the judicial examination and administer new evidence. The same finding was also made in decision no. 7/2018. 191. The Appeal Chamber rejected the appellant ’ s argument that the positive audit of his assets in 2013 by HIDAACI had acquired the force of res judicata, stating that the evaluation of assets had been permitted by lex specialis, namely the Vetting Act, which had laid down a methodology and procedure different from prior audits. This evaluation would only be administered once by a different body, such as the IQC, which was empowered to take a decision in each individual case. Code of Administrative Procedure (Law no. 44/2015) 192. Articles 35 to 40 relate to the representation of parties before a public authority. Article 45 enshrines the right of parties to have access to the case file. Article 46 provides that restrictions may be imposed on the parties ’ right under Article 45, and Article 47 guarantees the right of parties to express opinions, give explanations, submit evidence or make proposals about facts, circumstances, legal issues and the outcome of the case. Administrative Courts Act (Law no. 49/2012 on the organisation and functioning of the administrative courts and the adjudication of administrative disputes, as amended) 193. The Administrative Courts Act lays down rules relating to the jurisdiction and competence of administrative courts, as well as the principles and procedure for the adjudication of administrative disputes. 194. Section 47 states that an appellant may not submit new facts or request new evidence on appeal, unless the appellant can demonstrate that, through no fault of his or her own, it was not possible to submit those new facts or request new evidence, within the time-limits prescribed by the Act, during the examination of the case at first instance. 195. Section 49(1) states that the examination of an appeal is carried out in camera on the basis of the documents submitted. Under section 49(2), the president of the court bench, after fixing the date for the examination of the appeal in camera, informs the parties. It is open to the parties, up to five days prior to the examination of the case, to make written submissions in respect of the grounds of appeal and counter appeal. 196. Under section 51(1), the appellate court will decide in private to hold a public hearing if it considers that the parties ’ arguments are necessary to determine ( i ) that new facts should be considered or new evidence should be taken in order to establish the factual circumstances in a comprehensive and accurate manner; (ii) that the decision against which an appeal has been lodged was based on serious procedural breaches or on factual circumstances which had been established erroneously or inaccurately; or (iii) that the collection of some or all evidence should be carried out afresh in order to establish the correct factual circumstances. Code of Civil Procedure (“the CCP”) (Law no. 8116 of 29 March 1996, as amended) 197. Under Article 72 § 6 of the CCP, a judge may recuse him or herself from civil proceedings, by making a request to the president of the court, if (1) he or she has an interest in the proceedings or in any other dispute connected to the impugned proceedings; (2) he or she or his or her spouse are second-degree relatives or in-laws of, or have adoption obligations towards, or live permanently with, one of the parties to the proceedings or their representatives; (3) he or she or his or her spouse have a dispute or animosity with, or have taken a loan from, one of the parties to the proceedings or their representatives; (4) he or she has given advice or made public his or her views about the impugned proceedings or has participated in the examination of the case at another instance of the proceedings, has been questioned as a witness, expert or representative of one of the parties to the proceedings; (5) he or she is a guardian, employer of one of the parties to the proceedings, administrator or holds office in a legal entity, association, company or other institution which has an interest in the proceedings; (6) “it has been demonstrated, in view of the circumstances, that there are other serious reasons of partiality”. 198. In addition, Article 74 provides that a party to proceedings may request that a judge recuses him or herself from examining the case. Constitutional Court Act (Law no. 8577 of 10 February 2000 on the organisation and functioning of the Constitutional Court, as amended by Law no. 99/2016) 199. Section 36(1) of the Constitutional Court Act, as in force until 22 November 2016, stated that a judge of the Constitutional Court was required to withdraw from the examination of a case if: (a) he or she had participated in the preparation of the constitutional complaint, (b) his or her objectivity was called into question owing to kinship or another relationship with any of the parties to the proceedings, or (c) other instances gave rise to serious grounds of partiality. Under section 37, any of the parties had the right to request that a judge be excluded from sitting in a case for one of the reasons laid down in section 36 if the judge had not withdrawn from examining the case. 200. Until 22 November 2016 the Constitutional Court Act did not contain any provisions relating to disciplinary liability. Section 10, following amendments introduced on 23 November 2016, specifies the cases which may give rise to disciplinary liability on the part of a Constitutional Court judge. Under section 10/b, the following disciplinary sanctions may be imposed on a Constitutional Court judge: a written reprimand, a public reprimand, a temporary reduction of up to 50% of his or her salary for a period of up to one year, suspension from office for a period of between three and six months and dismissal from office. Asset Disclosure Act (Law no. 9049 of 10 April 2003 on the disclosure and audit of assets and financial obligations of elected officials and certain public servants, as amended from 2006 to 2018) 201. Following the entry into force of the Asset Disclosure Act in 2003, judges and prosecutors were, pursuant to section 6, required to file an initial asset disclosure declaration. Section 9 provides that this requirement also applies to judges and prosecutors taking up their functions for the first time. Pursuant to the Prevention of Conflicts of Interest in the Exercise of Public Functions Act, which entered into force on 26 May 2005 (“Prevention of Conflicts of Interest Act” - Law no. 9367/2005, as amended), judges and prosecutors are required to disclose all instances of conflicts of interest, as defined therein. Since amendments to the Asset Disclosure Act in 2012, the subsequent annual declaration of assets and conflicts of interest only has to indicate changes to the initial or preceding declarations, as the case may be. Under section 9/1, introduced in 2012 (by Law no. 85/2012), each declaration is to be accompanied by a special authorisation empowering the appropriate bodies to perform checks within and outside the country and to contact any person who they deem necessary. 202. The annual declaration of assets is filed with HIDAACI by 31 March of each calendar year, in respect of assets and liabilities for the period from 1 January to 31 December of the preceding year. Section 4 lists the assets that should be disclosed, such as real estate and movable properties, items of special value exceeding a specific threshold, the values of shares and securities as well as the number of shares held, cash savings, bank accounts, treasury bills and loans, annual personal income, licences and patents generating income, gifts and preferential treatment exceeding a specific value, engagements in profit-making activities or other activities generating income, and private interests based on and originating from family or cohabitation relationships. In addition, the sources used for their creation, any expenditure exceeding a specific threshold, financial obligations and liabilities, including those belonging to family members and related persons, are to be disclosed. Section 4/1, as introduced by Law no. 45/2014 which entered into force in 11 June 2014, requires all officials and public servants holding cash exceeding ALL 1.5 million (EUR 11,990) at home to deposit it to a bank account prior to filing the annual declaration of assets. 203. Section 22 provides that asset disclosure declarations are subject to preliminary checks by HIDAACI, which entails verifying that the declaration (and its annexes) has been completed properly and correctly. They may also be subject to a full audit, consisting of numerical and logical checks. According to the 2012 amendments, a full audit is carried out every two years in respect of judges of the Supreme Court and Constitutional Court and every three years in respect of appellate court judges. Since the 2014 amendments (brought about by Law no. 45/2014), first-instance court judges have been subject to a full audit every four years (prior to that, they used to be subject to random audits, which covered at least 4% of the total number of declarations filed with HIDAACI). 204. Under section 5, refusal to disclose assets and conflicts of interest results in dismissal from office and applicable criminal liability, upon notice served by HIDAACI to the responsible employing body. Under section 38, false disclosure of assets ( deklarim i rremë ) constitutes a criminal offence under the applicable criminal law (Article 257/a of the Criminal Code). The Act initially provided that failure to file an asset disclosure declaration within the time-limit and without good cause was punishable by an administrative fine of ALL 25,000 (EUR 199), which could be doubled in case of repeated failure. In 2012, the fine was increased, and ranges from ALL 50,000 (EUR 399) to ALL 100,000 (EUR 798). 205. As regards first-instance court and appellate judges, section 32(2)(ç) of the Judiciary Act 2008 (Law no. 9877/2008 on the organisation and functioning of the judiciary, as amended), which entered into force on 15 March 2008, provided, inter alia, that “refusal or failure to disclose assets, concealment of assets and false disclosure of assets” constituted “very serious” disciplinary breaches, entailing dismissal from office in accordance with section 33(3) thereof. The Judiciary Act 2008 was repealed as a result of the entry into force of the Judiciary Act 2016 (Law no. 98/2016) on 22 November 2016. Status of Judges and Prosecutors Act (Law no. 96/2016, as amended) 206. The Status of Judges and Prosecutors Act, which entered into force on 22 November 2016, lays down the rules for appointment as a judge. Under section 28(dh), a person has the right to apply for admission to the initial training course if he or she has not been dismissed from office on disciplinary grounds and there is no valid disciplinary sanction in force. Former judges may also be reappointed provided that they satisfy, amongst other things, the requirement laid down in section 28(dh). Section 150(3) states that the disciplinary sanction of dismissal from office imposed on judges and prosecutors will not be extinguished or erased from the register of disciplinary sanctions kept by the responsible authorities. 207. Section 166(6) states that members of the Appeal Chamber will be appointed to the post of appellate court judge upon the expiry of their term, unless a disciplinary sanction has been imposed on them. Lawyers ’ Act (Law no. 55/2018 on the profession of lawyers) 208. Under section 13(1), a person will be qualified to act as a lawyer if he or she has obtained the title of “advocate” and has been admitted as an advocate on the strength of a certificate (licence) issued by the Chamber of Advocates (namely the Bar Association). Section 13(2) lists a number of general requirements that have to be satisfied in order for a person to be admitted as an advocate, the most relevant, for the purposes of this case, being that “a person shall not have been removed from duty or a public function, on account of [a breach of] ethical integrity, by a final decision of the competent authority, save for cases where the disciplinary sanction has been extinguished by virtue of a specific law”. 209. Section 51 of the Lawyers ’ Act states that the First Instance Administrative Court is competent to hear complaints against disciplinary decisions given by the responsible bodies of the Chamber of Advocates. Relevant international materialsMaterials relating to the judiciary Materials relating to the judiciary Materials relating to the judiciary 210. Relevant Council of Europe texts, such as extracts from the Committee of Ministers ’ Recommendation (2010) 12, the Magna Carta of Judges (Fundamental Principles) and the European Charter on the Statute of Judges, can be found in Baka v. Hungary ([GC], no. 20261/12, §§ 77, 78 and 81, 23 June 2016). 211. Relevant international texts, such as extracts from the Bangalore Principles of Judicial Conduct, can be found in Rustavi 2 Broadcasting Company Ltd and Others v. Georgia (no. 16812/17, § 224, 18 July 2019), and Harabin v. Slovakia (no. 58688/11, § 107, 20 November 2012). Materials relating to the fight against corruptionUnited Nations materials United Nations materials United Nations materials 212. The United Nations Convention Against Corruption entered into force in respect of Albania on 25 May 2006, having been signed on 18 December 2003. Its main purpose is to promote and strengthen measures to prevent and combat corruption more efficiently and effectively. In this connection, Article 8, which calls on States Parties to apply codes of conduct for public officials, states amongst other things that a State Party should “establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials” and “take disciplinary or other measures against public officials who violate the codes or standards”. Council of Europe materials (a) Legal instruments 213. The Criminal Law Convention on Corruption (ETS No. 173) entered into force in respect of Albania on 1 July 2002. It aims at the coordinated criminalisation of a large number of corrupt practices, as outlined in its Articles 2 to 14. Its implementation will be monitored by the Group of States against Corruption (“GRECO”) which had been established in 1999. 214. The Civil Law Convention on Corruption (ETS No. 174) entered into force in respect of Albania on 1 November 2002. It requires Contracting Parties to provide in their domestic law “for effective remedies for persons who have suffered damage as a result of acts of corruption, to enable them to defend their rights and interests, including the possibility of obtaining compensation for damage”. Its implementation will be monitored by GRECO. 215. Committee of Ministers Recommendation No. R (2000)10 on codes of conduct for public officials, which was adopted on 11 May 2000, recommends the adoption of national codes of conduct for public officials based on the model code of conduct annexed to the Recommendation. Under Article 14 of the model code, a public official “who occupied a position in which his or her personal or private interests are likely to be affected by his or her official duties should, as lawfully required, declare upon appointment, at regular intervals thereafter and whenever any changes occur the nature and extent of those interests”. Under Article 28, a breach of the provisions of the model code of conduct may result in disciplinary action. (b) GRECO evaluation reports 216. The Group of States against Corruption (GRECO) monitors States ’ compliance with the Council of Europe ’ s anti-corruption standards. It works in cycles, known as evaluation rounds, each covering specific themes. Following an on-site visit, the GRECO evaluation team (“GET”) produces an evaluation report, which may include recommendations requiring action to be taken by the State to ensure compliance therewith. 217. In the first evaluation round concerning the independence, specialisation and means of national bodies engaged in the prevention and fight against corruption, which was carried out in Albania from 8 to 12 April 2002, the GET stated in the section of its evaluation report headed “The phenomenon of corruption and its perception in Albania”, in so far as the judiciary was concerned, the following: “13. Surveys (referred to by the Government) carried out with the support from the international community, show that the judiciary, the Customs, the Privatisation Agency and the Health service are among the most corrupt. ... The authorities consider that the most common form of corruption in Albania is bribery. Civil servants or other officials are inclined to accept bribes to expedite service delivery, to refrain from using punishment foreseen in law/regulation or judges who may be ready to change court decisions, etc. Surveys also show that it is very common that private enterprises pay bribes to public officials to avoid taxes and regulations, or that court and arbitrage decisions are being bought.” 218. The analysis section of the evaluation report, in so far as the courts were concerned, stated the following: “156. ... the independence of the judiciary is of paramount importance under the rule of law, however, such independence is not without limits and must be connected to a system of accountability. The Albanian Constitution provides for the independence of the judiciary and the authorities are struggling to put in place an accountability mechanism of the judges. The GET recognises the difficulties linked to this, considering that the judicial system in Albania appears to be suffering from a general lack of public confidence. Furthermore, this is an area where the Albanian authorities consider anti-corruption measures to be very important. It was also noted, however, that it seems that the judiciary consists of dedicated officials working under difficult conditions”. 219. In the second evaluation round concerning, amongst other things, public administration and corruption, which was carried out in Albania from 11 to 15 October 2004, the GET stated in its report the following relevant information: “34. A new control body, the High Inspectorate for Declaration and [Audit] of Assets, is operating in Albania. It is an independent institution with a duty to verify obligatory declaration of assets required of individuals particularly exposed to corruption. Medium, higher and elected public officials including at local level, as well as judges, prosecutors, etc. are obliged to report all kinds of assets, financial obligations, income, etc. to this body. Their family members and close associates are also subject to this obligation. Failure to do so may lead to disciplinary, administrative and/or criminal sanctions. Control of their financial statement is carried out by requesting information from banks, registers, etc. which hold pertinent information. Responding correctly to such requests is an obligation. Suspicious cases have already been examined. In one case, a person has been dismissed. The case was also reported to the prosecutor ’ s office.” 220. GRECO ’ s fourth evaluation round, which was carried out in Albania from 28 October to 1 November 2013, focused on prevention of corruption in respect of MPs, judges and prosecutors. Its evaluation report stated, in so far as judges were concerned, the following relevant information: “13. According to the 2013 Global Corruption Barometer, the perception of corruption within the judiciary is the highest (81% of respondents). In the opinion of the Heritage Foundation, a culture of impunity and political interference has made it difficult for the judiciary to deal with high-level and deeply rooted corruption, and the implementation of deeper institutional reforms to increase judicial independence and eradicate lingering corruption remains critical. The seriousness of judicial corruption has also been reiterated in the reports of the European Commission and of the Commissioner for Human Rights of the Council of Europe. ... 53. The discussions on-site highlighted the clear priority given to asset declaration by officials and the regular in-depth monitoring carried out by the HIDAA. The asset disclosure regime extends to a large number of officials (currently some 4,670 persons) as well as their family members, “trusted persons” and “partners/cohabitees”. The GET was informed that, due to the HIDAA ’ s limited capacity to process all declarations and carry out checks in a timely fashion, the [Asset Disclosure Act] was amended in 2012 introducing a differentiated treatment for various categories of officials. ( ... ) ... 75. ... the recently introduced system for ethical and professional evaluation of judges cannot be considered effective and efficient due to the significant time lapse between evaluation and the reference period. GRECO does not share the opinion of the authorities who assert that such evaluation cannot be managed in real time as the average duration of trial before the three instances is up to three years. A well-conceived system of periodic assessments allows not only for the monitoring of a judge ’ s performance and its progression over time but also for the early detection of problems, such as the high caseload and backlog which many judges confront and which can and should be addressed at an earlier stage. In light of the high public perception of corruption in the judiciary, another source of concern to which consideration needs to be given is the apparent lack of well-formulated criteria for periodic evaluation of a judge ’ s ethical qualities (as a continuation of the integrity checks that are carried out before appointment). Declaration of assets income, liabilities and interests 95. As previously stated, the asset disclosure regime is widely regarded as an important tool for combating corruption and achieving greater transparency of private interests of officials, including judges. Nevertheless, the shortcomings that arise from the absence of the timely on-line publication of MPs ’ asset declarations have the same effect in respect of all categories of judges and contribute to diminished public trust in the judiciary. That being said, the risks generated by this delayed public disclosure are mitigated to a certain extent by the length of a judge ’ s service which is not time-barred. For this reason, GRECO foregoes issuing a separate recommendation on this matter; still it encourages the authorities to ensure the timely publication of asset declarations by judges on an official web site, having regard to the privacy and security of judges and their family members who are subject to a reporting obligation. ... Supervision over declarations of assets, income, liabilities and interests 97. The supervision of judges ’ asset declarations is also assigned to the HIDAA. It is carried out in a manner identical to that applied in respect of MPs, except that the declarations of the [Supreme] Court justices and judges who are HCJ [High Council of Justice] members are to be audited every two years, those of appellate judges – every three years, and finally, the declarations of district court judges are subject to annual random audits. In case of refusal or failure to declare, concealment or false declaration of assets, the HIDAA refers the case to the Prosecution Service for criminal proceedings, and to the HCJ and the Minister of Justice – for disciplinary [sanctions] of dismissal from office. ... 99. As mentioned above, judges are disciplinarily liable for violations of law and commission of acts and conduct discrediting their reputation and integrity. “Very serious” violations (e.g. non-compliance with incompatibility rules; refusal to declare, failure to declare, hiding or false declaration of assets; obtaining, directly or indirectly, gifts, favours, promises or preferential treatment, in the exercise of duties; failure to withdraw from a trial; the absolute absence of reasoning in a judicial decision) are sanctioned by removal from office. “Serious” violations (e.g. repeated and unjustified procedural delays; interference with or any kind of other influence exerted on another judge; violation of ethical norms in relations with parties, colleagues, court president and staff, experts, prosecutors and lawyers) are punishable by a transfer for one to two years to a lower instance or same level court outside the judicial district of a judge ’ s appointment. Finally, “minor” violations lead to a reprimand or a reprimand with a warning. 100. Disciplinary proceedings are carried out by the HCJ. The period of limitation is one year from the date the violation is found by/reported to the Minister of Justice and five years from the date of its commission.” (c) Venice Commission report 221. On 9 December 2020 the Venice Commission released an urgent opinion on the constitutional situation created by a decision of the Constitutional Court of Ukraine, which had declared unconstitutional certain statutory provisions in the sphere of anti-corruption, including a criminal-law provision which provided for criminal liability for submitting false assets declarations or failure to submit a declaration. The relevant parts of the Venice Commission ’ s opinion read as follows: “ 34. Since the central argument of the [Constitutional Court of Ukraine] is the alleged ‘ lack of proportionality ’ of [the ‘ criminal - law ’ provision], more tailor-made sanctions may be provided in the revised provision: for example, the sanction of imprisonment may be reserved only for cases above a certain threshold and for perpetrators acting with deliberate intent. That being said, in the [Venice] Commission ’ s view, the level of monetary fines and other sanctions should be sufficiently high as to act as [a] deterrent and as to ensure a punishment which is proportionate to the importance which the fight against corruption has in Ukraine. The sanction of imprisonment should be maintained for the most serious violations ... ” Case-law of the Court of Justice of the European Union (the “CJEU”) Judgments in cases Commission v Poland (Independence of the Supreme Court, C-619/18) and Commission v Poland (Independence of ordinary courts), C-192/18) Judgments in cases Commission v Poland (Independence of the Supreme Court, C-619/18) and Commission v Poland (Independence of ordinary courts), C-192/18) Judgments in cases Commission v Poland (Independence of the Supreme Court, C-619/18) and Commission v Poland (Independence of ordinary courts), C-192/18) 222. In response to an action concerning alleged breaches of European Union law arising from the enactment of a new domestic law on the Supreme Court of Poland, brought by the European Commission against Poland (case of Commission v. Poland (Independence of the Supreme Court), C ‑ 619/18), on 24 June 2019 the Grand Chamber of the CJEU held that Poland had failed to fulfil its obligations under European Union law, first, by providing that the measure consisting in lowering the retirement age of Supreme Court judges to 65 was to apply to judges in post who had been appointed to that court before the date on which the relevant law had entered into force and, second, by granting the President of the Republic discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age. The CJEU held that the application of the measure lowering the retirement age of the judges of the Supreme Court to the judges in post within that court was not justified by a legitimate aim and undermined the principle of irremovability of judges, which was essential to their independence. 223. In response to an action concerning alleged breaches of European Union law arising from the introduction of amendments to the Polish law on the ordinary courts, brought by the European Commission against Poland (case of Commission v. Poland (Independence of ordinary courts), C ‑ 192/18), on 5 November 2019 the CJEU ’ s Grand Chamber held that Poland had failed to fulfil its obligations under European Union law, first, by establishing a different retirement age for men and women who were judges or public prosecutors in Poland and, second, by lowering the retirement age of judges of the ordinary courts while conferring on the Minister for Justice the power to extend the period of active service of those judges. As regards the power held by the Minister of Justice, the CJEU found that the national statutory provisions which laid down the substantive conditions and detailed procedural rules governing the adoption of decisions by the Minister of Justice gave rise to “reasonable doubts, inter alia, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interest that may be the subject of argument before them”. The CJEU further held that the power held by the Minister of Justice failed to comply with the principle of irremovability, which was inherent in judicial independence. 224. In so far as is relevant for the purposes of the present case, the CJEU referred in both judgments to, inter alia, the following general principles: “The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed (references omitted). In that latter respect, it is apparent, more specifically, from the [CJEU ’ s] case-law that the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions. Thus, rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in ... the Charter [of Fundamental Rights of the European Union], in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies ’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary.” Judgment in the case of A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18 and C-625/18) 225. In response to three requests for a preliminary ruling concerning the independence of the newly established Disciplinary Chamber of the Supreme Court of Poland, made by the Labour and Social Insurance Chamber of the Supreme Court of Poland (case of A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C ‑ 585/18, C-624/18 and C-625/18), on 19 November 2019 the CJEU ’ s Grand Chamber held that the referring court had to ascertain whether the new Disciplinary Chamber of the Supreme Court was independent in order to determine whether that chamber had jurisdiction to rule on cases where judges of the Supreme Court were retired, or in order to determine whether such cases had to be examined by another court which would meet the requirement that courts must be independent. 226. In doing so, the referring court had to assess the circumstances in which the new judges of the Disciplinary Chamber were appointed and the role of the Polish National Council of the Judiciary (“NCJ”) in making proposals for appointment to the President of the Republic of Poland. In particular, the referring court had to examine the following specific factors, which the CJEU had identified, in order to ascertain whether the new Disciplinary Chamber of the Supreme Court offered sufficient guarantees of independence: ( i ) compliance with the substantive conditions and detailed procedural rules governing the appointment of judges of the new Disciplinary Chamber, (ii) the degree of independence enjoyed by the Polish NCJ from the legislature and the executive in exercising the responsibilities attributed to it under national law, (iii) the way in which the Polish NCJ exercised its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers, in particular if it did so in a way which was capable of calling into question its independence from the legislature and the executive, (iv) the effectiveness of the judicial review of a resolution of the Polish NCJ, including its decisions concerning proposals for appointment to the post of judge of the Supreme Court, which would, at the very least, be capable of examining whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment. 227. In addition, the referring court had to examine other features which more directly characterised the new Disciplinary Chamber, such as ( i ) its exclusive jurisdiction to rule on a specific number of matters which previously fell within the jurisdiction of the ordinary courts, (ii) its composition of solely newly appointed judges, thereby excluding judges already serving in the Supreme Court, and (iii) its particularly high degree of autonomy compared to the other chambers of the Supreme Court. 228. As a general point, the CJEU reiterated at several points that, although each of the factors examined, taken in isolation, were not necessarily capable of calling into question the independence of the Disciplinary Chamber, that could, however, be the case once they were taken together. 229. Subsequent to the CJEU ’ s judgment, the Labour and Social Insurance Chamber of the Supreme Court of Poland delivered three judgments in cases that had been referred for a preliminary ruling to the CJEU (one on 5 December 2019 and two on 15 January 2020). The judgment of 5 December 2019 contained extensive grounds and applied the indications as to the applicable standards given by the CJEU. The Labour and Social Insurance Chamber of the Supreme Court concluded that the NCJ was not an authority that was impartial and independent from legislative and executive branches of power. Moreover, it concluded that the newly established Disciplinary Chamber of the Supreme Court was not a court within the meaning of domestic law and the Convention. THE LAW alleged violation of article 6 § 1 of the Convention 230. The applicant complained that the vetting bodies lacked independence and impartiality, as required by Article 6 § 1 of the Convention, for the following reasons: ( i ) the vetting bodies were composed of non-judicial members who lacked the requisite professionalism and experience; (ii) the members of the vetting bodies were appointed by parliament without any involvement of the judiciary; (iii) the vetting bodies carried out the preliminary administrative investigation, framed the “accusation” and decided on the merits of the “accusation”. 231. She also complained under Article 6 § 1 of the Convention of unfairness in the proceedings in her case, for the following reasons: ( i ) she had been denied the right to refute the main reason for her dismissal and defend herself; (ii) the IQC had shifted an unreasonable burden of proof onto her in relation to circumstances which had arisen decades ago; (iii) the Vetting Act had not prescribed any limitation periods; (iv) the decisions in her case had lacked reasoning in relation to her arguments; (v) the vetting bodies had applied double standards compared to other cases; (vi) the Appeal Chamber had dismissed her request to submit further exculpatory evidence; (vii) she had not had sufficient time and facilities to prepare her defence; (viii) the Appeal Chamber had failed to hold a public hearing; and (ix) the vetting bodies had breached the principle of legal certainty and legitimate expectation in so far as they had disregarded the positive audit of her assets carried out by HIDAACI. 232. Article 6 § 1 of the Convention, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.” Admissibility 233. The Court, having regard to the parties ’ submissions, will now determine matters regarding the applicability of Article 6 § 1, the exhaustion of domestic remedies and compliance with the six-month time-limit. Applicability of Article 6 § 1 (a) The parties ’ submissions 234. The Government conceded that Article 6 § 1 of the Convention applied under its civil limb. In view of the administrative nature of the vetting proceedings, they contested the applicability of Article 6 § 1 of the Convention under its criminal limb. 235. The applicant maintained that Article 6 applied under its civil limb. She further argued, with reference to Matyjek v. Poland (( dec. ), no. 38184/03, ECHR 2006 ‑ VII), that Article 6 applied under its criminal limb for the following reasons: ( i ) the IQC, which had carried out the preliminary investigation and adopted a decision at first instance, was vested with powers similar to those of a public prosecutor; (ii) her position in the vetting proceedings had been like that of an accused in criminal proceedings; (iii) the nature of the offence, namely the production of untrue statements in the declaration of assets, was analogous to that of perjury, which would be liable to criminal prosecution; and (iv) the nature and degree of severity of the penalty at stake, namely dismissal from office, allegedly entailed an indefinite ban on applying for a large number of public posts. (b) The Court ’ s assessment (i) Applicability of Article 6 § 1 under its civil head 236. The Court notes that the parties did not contest the applicability of Article 6 § 1 of the Convention under its civil limb. In this connection, the Court points out that labour disputes between civil servants and the State may fall outside the civil limb of Article 6 provided that two cumulative conditions are fulfilled. In the first place, the State in its national law must have expressly excluded access to the courts for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State ’ s interest (see, for example, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ II, hereafter “the Vilho Eskelinen test”). 237. Although the judiciary is not part of the ordinary civil service, it is considered part of typical public service. Therefore, Article 6 § 1 has been applied to proceedings relating to the dismissal of judges chiefly on account of the fact that judges had access to the national courts to challenge their dismissal (see, for example, Olujić v. Croatia, no. 22330/05, §§ 42-43, 5 February 2009; Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 90-91, ECHR 2013; Poposki and Duma v. the former Yugoslav Republic of Macedonia, nos. 69916/10 and 36531/11, § 37, 7 January 2016; and Sturua v. Georgia, no. 45729/05, § 27, 28 March 2017). 238. Turning to the present case, and with regards to the first condition laid down in the Vilho Eskelinen test, the Court notes that, further to the institution of the vetting proceedings, the IQC, at first instance, and the Appeal Chamber, on appeal, dismissed the applicant from her post as a judge of the Constitutional Court. Indeed, domestic law did not exclude her right to challenge the dismissal. 239. However, as the Court has to determine for the first time whether the IQC and Appeal Chamber are to be considered a “tribunal established by law”, it considers that the applicability of Article 6 § 1 of the Convention under its civil head must be joined to the merits of this complaint. (ii) Applicability of Article 6 § 1 under its criminal head 240. The Court notes that the parties disagreed on whether Article 6 § 1 was applicable under its criminal head. 241. The Court points out that the two aspects, civil and criminal, of Article 6 § 1 are not necessarily mutually exclusive (see Albert and Le Compte v. Belgium, 10 February 1983, § 30, Series A no. 58). The concept of a “criminal charge” in Article 6 § 1 is an autonomous one. The Court ’ s established case-law sets out three criteria, commonly known as the “Engel criteria”, to be considered in determining whether or not there was a “criminal charge” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative, and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, among other authorities, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 122, 6 November 2018, and the references cited therein). 242. In Matyjek (cited above, §§ 49-58 ), in holding that Article 6 was applicable under its criminal head to lustration proceedings under Polish law, the Court had regard to the fact that the Polish Code of Criminal Procedure was applicable to the proceedings, that the nature of the act for which the applicant had been subject to lustration, namely making a false declaration, was akin to the criminal offence of perjury, and that the sanction imposed on him, a ban on occupying a range of public posts for ten years, was severe. 243. Turning to the present case, as regards the first of the Engel criteria, namely the domestic classification of the offence, the Court observes that the vetting proceedings against the applicant, which were of a disciplinary nature, were governed by the Vetting Act, in conjunction with the rules laid down in the Code of Administrative Procedure, the Administrative Courts Act or the Code of Civil Procedure, as applicable. No reference or mention was ever made to the application or interpretation of criminal law or criminal procedure law. The vetting proceedings were conducted by a specially established body, the IQC, subject to a subsequent appeal to the Appeal Chamber, and neither the prosecuting authorities nor the criminal courts were involved in determining their outcome. Furthermore, Article Ç § 5 of the Annex to the Constitution only provides for a shifting of the burden of proof in vetting proceedings, it being expressly excluded during any separate criminal proceedings, and Article DH § 2 of the Annex to the Constitution explicitly bars the use of the integrity background declaration in any criminal proceedings (see paragraphs 107 and 109 above). For these reasons, the Court cannot accept the applicant ’ s argument that her position had been like that of an accused in criminal proceedings or that the IQC ’ s powers were similar to those of a public prosecutor. 244. As to the second criterion – the very nature of the offence – the Court notes that the applicable statutory provisions were aimed solely at a specific category, namely judges, prosecutors and legal advisors, and not at the public in general. The provisions were designed to protect the professions ’ conduct, honour and reputation and to maintain public trust in the judiciary. They were purely of a disciplinary nature and not vested with elements of a criminal nature. That the applicant may be subject to criminal proceedings in the future on account of false disclosure of assets does not suffice to bring the vetting proceedings within the criminal sphere. In this connection, the fact that an act which can lead to a disciplinary sanction also constitutes a criminal offence is not sufficient to consider a person responsible under disciplinary law as being “charged” with a crime (see Müller- Hartburg v. Austria, no. 47195/06, § 44, 19 February 2013, and Biagoli v. San Marino ( dec. ), no. 64735/14, § 56, 13 September 2016 ). It would only be in the context of any future, separate criminal proceedings which might be instituted against the applicant that Article 6 § 1 may be found to apply under its criminal head. 245. With regard to the third criterion, that is, the degree of severity of the penalty, the Court notes that the applicant ’ s dismissal is a sanction characteristic of a disciplinary offence and cannot be confused with a criminal penalty. No fine was imposed on her subsequent to her dismissal. The Court further notes that the Vetting Act does not impose a permanent ban on applying for posts in the justice system. However, the Status of Judges and Prosecutors Act has barred judges and prosecutors who have been dismissed from office from rejoining the justice system (see paragraph 206 above). Be that as it may, this bar, in any event, would not in itself be decisive to regard the vetting proceedings as criminal for the following reasons. The bar is not set out in criminal law. It cannot be considered a sanction that is criminal in nature. The purpose of the bar from rejoining the justice system does not appear to be to impose a punishment in relation to the dismissal from office, but is rather aimed at ensuring and preserving public trust in the justice system. Even though, in itself, the bar appears to be a rather severe consequence, many non-penal measures of a preventive nature may have a substantial impact on the person concerned. The mere fact that the bar is of a permanent nature does not suffice to regard it as a penalty (see, mutatis mutandis, Rola v. Slovenia, nos. 12096/14 and 39335/16, § 66, 4 June 2019). The same finding would also apply to any claim that the applicant is ineligible to join the civil service, a speculative claim which she has not challenged before the national courts. 246. In these circumstances, the Court considers that, the elements above, taken alternatively or cumulatively, are insufficient to reach a conclusion that Article 6 is applicable under its criminal limb (see, amongst other authorities, Ramos Nunes de Carvalho e Sá, cited above, §§ 124-27; Kamenos v. Cyprus, no. 147/07, § 51, 31 October 2017; Ivanovski v. the former Yugoslav Republic of Macedonia, no. 29908/11, § 121, 21 January 2016; and Oleksandr Volkov, cited above, §§ 93-95 ). Exhaustion of remedies 247. The Government submitted that the applicant had not complained before the IQC or on appeal before the Appeal Chamber that the IQC had framed the “accusation” and decided on the merits of the “accusation”. 248. The applicant submitted that she had availed herself of all domestic remedies and had submitted her complaints to the Appeal Chamber. 249. The Court points out that the purpose of the exhaustion rule is to afford a Contracting State the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it. It is true that under the Court ’ s case-law it is not always necessary for the Convention to be explicitly raised in domestic proceedings provided that the complaint is raised “at least in substance”. This means that the applicant must raise legal arguments to the same or like effect on the basis of domestic law, in order to give the national courts the opportunity to redress the alleged breach. However, as the Court ’ s case-law bears out, to genuinely afford a Contracting State the opportunity of preventing or redressing the alleged violation requires taking into account not only the facts but also the applicant ’ s legal arguments, for the purposes of determining whether the complaint submitted to the Court had indeed been raised beforehand, in substance, before the domestic authorities (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 117, 20 March 2018, and the references cited therein). 250. Turning to the circumstances of the present case, the Court notes that on 9 June 2018 the applicant lodged an appeal against the IQC ’ s decision with the Appeal Chamber, making numerous complaints of a procedural and substantive nature. Indeed, the appeal pointed to the alleged failure by the IQC to secure procedural guarantees, and took issue with its active concurrent roles of collecting evidence and information and deciding on the merits of the case. The Court considers that the allegation made in the applicant ’ s appeal is akin to arguments to the same or like effect that she has raised before this Court of a lack of impartiality on the part of the IQC on the grounds that it had framed the “accusation” and decided on its merits. In the Court ’ s view, she raised this ground of the complaint “at least in substance” before the Appeal Chamber, which, with reference to Article F of the Annex to the Constitution and section 63 of the Vetting Act (see paragraphs 112 and 152 above), is a remedy to be exhausted for the purposes of Article 35 § 1 of the Convention. 251. Accordingly, the Court finds that the Government ’ s objection in this regard should be dismissed. Compliance with the six-month time-limit 252. In her observations on the admissibility and merits of the case submitted on 10 January 2020, the applicant complained that ( i ) three members of the Appeal Chamber ’ s bench had not satisfied the statutory eligibility criteria to be shortlisted and, subsequently, appointed as members of the Appeal Chamber and (ii) another member of the Appeal Chamber had not disclosed a conflict of interest concerning the conviction of that member ’ s sibling in 1997 by an appellate court bench, of which the applicant ’ s father had been a member. The applicant alleged that she had learned of this latter development on 25 November 2019, after it had been brought to her attention by another judge of the Constitutional Court who had been dismissed from office as a result of vetting proceedings. 253. The Court notes that even though the Government did not raise any objection to the applicant ’ s failure to comply with the six-month time-limit, it is not open to the Court to set aside the application of the six-month rule on that ground (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006 ‑ III, and, subsequently, Ramos Nunes de Carvalho e Sá, cited above, § 98). The Court must therefore ascertain whether those allegations were part of the initial complaints, the introduction of which interrupted the running of the six-month period. 254. In the initial application, the applicant complained that the vetting bodies had not been independent and impartial, for the reasons set out in paragraph 230 above. She did not raise in substance or even implicitly the allegation that three members of the Appeal Chamber had not complied with the statutory eligibility criteria. She did not claim to have faced any difficulties in obtaining reliable – or indeed official – information on those members ’ eligibility with the statutory criteria, prior to such allegations coming to light, and in any event following the communication of the case of Sevdari v. Albania (no. 40662/19) on 22 November 2019 in which specific questions were put to the parties regarding the outcome of domestic proceedings against certain members of the Appeal Chamber for alleged non-compliance with the statutory eligibility criteria. In such circumstances, the Court is not convinced that the applicant was prevented from coming into possession of such material in the course of the domestic proceedings and from voicing any suspicions as to the members ’ compliance with the eligibility criteria before the Appeal Chamber. Furthermore, she did not take any steps to challenge the alleged non-compliance of certain members of the Appeal Chamber with the statutory eligibility criteria before the relevant national authorities subsequent to lodging her application with the Court and prior to the Court taking a decision on its admissibility. Moreover, the domestic proceedings concerning fulfilment by those members of the statutory eligibility criteria are currently pending before the national authorities. 255. Nor did the applicant complain in the initial application that a fourth member of the Appeal Chamber had failed to disclose a conflict of interest and recuse herself from the proceedings. That she allegedly learned of this development on 25 November 2019, without substantiating the fact that she could not have become aware of the 1997 appellate court decision prior to that date, cannot serve to absolve her from the obligation to have acted with due diligence in the course of the domestic proceedings, obtained official information and raised an objection to that member ’ s participation in the bench before the Appeal Chamber. Against this background, the Court is not convinced that it was impossible for the applicant to learn of this element in the course of the domestic proceedings. 256. That the applicant invoked Article 6 of the Convention in her application and that notice of the application was given to the respondent Government under that Article does not suffice to justify the introduction of subsequent complaints under that provision where no indication was initially given to the factual basis of the grounds of the complaint in the application form. As the scope of Article 6 of the Convention is very broad, the Court ’ s examination is necessarily delimited by the specific grounds of the complaint that the applicant initially submitted to it (see Ramos Nunes de Carvalho e Sá, cited above, § 103-04). 257. In these circumstances, the Court concludes that the applicant only raised these complaints for the first time on 10 January 2020, more than six months after notification of the Appeal Chamber ’ s decision to her on 23 November 2018 (see paragraph 59 above). The Court has previously found a new complaint submitted for the first time in the applicant ’ s observations on the admissibility and merits of the case to have been introduced outside the six-month time-limit, in breach of Article 35 § 1 of the Convention (see, amongst other authorities, Fábián v. Hungary [GC], no. 78117/13, § 98, 5 September 2017, and Majski v. Croatia, no. 33593/03, § 34, 1 June 2006 ). Consequently, this complaint has been lodged out of time and must be rejected pursuant to Article 35 § 1 and 4 of the Convention. Conclusion as regards admissibility 258. The Court notes that, save for the ground of the applicant ’ s complaints under Article 6 § 1 declared inadmissible in paragraph 257 above, the remaining complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. Merits 259. In view of the applicant ’ s numerous complaints, the Court will first consider the complaint alleging that the vetting bodies lacked independence and impartiality. It will subsequently examine the complaint of unfairness in the proceedings and the complaint regarding the lack of a public hearing before the Appeal Chamber, and will conclude by considering the complaint alleging a breach of the principle of legal certainty. Compliance with the principle of “an independent and impartial tribunal established by law” (a) The parties ’ submissions (i) The applicant 260. The applicant submitted that, contrary to the requirements laid down in a number of international documents, such as the European Charter on Statutes of Judges and the Magna Carta of Judges, the vetting bodies were composed of (almost entirely) non-judicial members. None of the members commanded the necessary legal and/or judicial experience and skills for examining complex matters of fact and law. 261. The members of the vetting bodies were entirely elected by Parliament, after a preselection procedure carried out by an ad hoc parliamentary committee, there having been no involvement of the judiciary. In the applicant ’ s view, the role of the IMO was confined to supervising the application process, making recommendations in respect of the candidates and submitting the list of candidates for Parliament ’ s approval. There was a lack of transparency in the selection process as the candidates had not made public their professional qualifications and competence. Furthermore, some candidates had been employed by State institutions or involved in politics. 262. Furthermore, the mandate of the members of the vetting bodies was limited to five years for the IQC members and nine years for the Appeal Chamber members. According to the applicant, this limited term of office made them vulnerable to external influence, which cast doubt on their independence. She further submitted that the work of the vetting bodies was under the constant scrutiny of the Government, which, in 2018, had awarded them a “performance bonus”. There was no formal recognition of their irremovability in the law. 263. The applicant argued that the ultimate effect of the preliminary investigation which the IQC had carried out had been prejudicial to her case. This was accentuated by the fact that the burden of proof had rested automatically and exclusively with her. 264. She further alleged that, since taking office in 2013, the Government had launched frontal and fierce attacks on the judiciary, frequently and publicly accusing judges of corruption and incompetence, as well as branding them as “criminals”. The Prime Minister had even taken issue with the composition of the Justice Appointment Council. She submitted a news item from a television internet portal dated 2 May 2018 reporting the Prime Minister as saying as follows: “vetting has already started. [E]ach day [ ... ] you have witnessed the results which will continue to intensify. Corrupt judges and prosecutors will be removed from the system. Anyone who is unable to establish the legitimacy of his or her wealth, who is unable to demonstrate the integrity of previous decision-making, who is unable to prove the ability to remain in the new justice system, will no longer be a member. This is a good reason to remain optimistic about the future.” 265. The applicant alleged that the Appeal Chamber did not have any constitutional review powers, which were exclusively vested with the Constitutional Court. (ii) The Government 266. The Government submitted that the vetting process had a legal basis in the Constitution and the Vetting Act. The fact that the establishment of the vetting bodies was provided for in the Constitution was a guarantee of their independence from undue interference by the executive and the legislature. 267. The members of the vetting bodies were selected by means of a competitive and transparent procedure in accordance with the criteria prescribed by law. The restrictions imposed by the selection criteria were a further guarantee to preclude current judges, prosecutors and legal advisors who had a clear conflict of interest, or other individuals who had held public office in the administration or had been in leadership positions in political parties in the last ten years, from becoming members of the vetting bodies. 268. The election of the members followed the procedure prescribed by law and guaranteed an impartial and consensual process of appointment. The process was monitored by the People ’ s Advocate and the IMO, while the ad hoc parliamentary committee was composed of MPs from both the ruling party and the opposition. The involvement of constitutional bodies in the selection of candidates was aimed at avoiding the politicisation of the process and ensuring their independence and impartiality. That Parliament was involved in their election was consistent with its role under the Constitution in electing members of constitutional bodies, as had been the case previously. The discharge of their duties was incompatible with any other function. The Vetting Act had introduced the obligation for members of the vetting bodies to declare and avoid any conflicts of interest in the examination of a given case. No such conflicts of interest had been disclosed in the applicant ’ s case and she had not raised any complaints or made requests for the recusal of any member. The composition of the bench in both instances had been drawn by lots, as had their presidents and rapporteurs. 269. The Government contended that the IQC had not prejudiced the outcome of the applicant ’ s case. It had not informed the applicant of an early or premature imposition of a disciplinary sanction. Its preliminary findings had been examined together with the evidence the applicant had submitted, thus ensuring adversarial proceedings. Its members had not taken any action which would raise doubts as to their impartiality. Furthermore, the IQC, in view of the specific nature of the vetting proceedings, was not an ordinary disciplinary body which investigated alleged disciplinary breaches committed by judges and prosecutors. Instead, it carried out an independent assessment of the three criteria laid down in the Constitution and the Vetting Act. It did not take the initiative to bring any charges. The involvement of the IQC and the scope of investigation were determined by law, including the manner of obtaining information. Its activity was equivalent to that of a quasi-judicial body. The fact that the IQC had decision-making powers, after examining all the evidence in the case file, was an inherent feature of this type of special administrative disciplinary procedure. In no circumstances had the IQC predetermined the outcome of the applicant ’ s case. The applicant had appealed to the Appeal Chamber which, in turn, had had full jurisdiction over questions of fact and law. (b) The third-party interveners 270. The Court will set out below the submissions received from the third parties which were granted leave to intervene in the case, there being no need to separate them in respect of each of the applicant ’ s complaints. (i) The European Commission 271. The European Commission, representing the European Union, submitted that the comprehensive justice reform adopted by Albania in 2016, which aimed at restoring public trust and confidence in the justice system, consisted of two pillars: firstly, the institutional restructuring of the entire judiciary and prosecution services and, secondly, the setting up of the vetting process by amending the Constitution and enacting the Vetting Act. 272. The aim of the vetting process was to fight widespread corruption, unprofessionalism and links with organised crime amongst judges and prosecutors, re-establish an independent and impartial judicial system and restore public trust in it. The involvement of the international community was considered crucial for the credibility of the process, which had been anchored in the Constitution. Whereas it noted that the vetting process could create significant tension within a country ’ s judiciary, the European Commission considered that its temporary nature was justified given the cumulative fulfilment of the following circumstances: the level of corruption and political influence in the judiciary was extremely high, the proposed measure enjoyed broad political and public support, and the existing tools and mechanisms to ensure integrity and fight corruption of judicial office holders had been exhausted. For those reasons, the European Commission maintained that the vetting process was indispensable for the reform process and was to be pursued thoroughly until its completion, under the continued close and independent supervision of the IMO. 273. According to the European Commission, the essential elements of the vetting process were threefold: ( i ) the IQC was composed of independent and qualified personnel and had the necessary investigative and decisional powers to carry out its functions; (ii) the Appeal Chamber was set up as a court of law and acted as an independent tribunal, responsible for examining appeals against IQC decisions on questions of fact and law; and (iii) the IMO and the international observers were in a position to monitor and report on the vetting process in complete independence. 274. The European Commission submitted that the vetting process provided sufficient guarantees for conducting a due process and respecting fundamental rights for the following four reasons. Firstly, the legal framework, namely Article 179/b of the Constitution and sections 4(5), 47 and 55 of the Vetting Act, laid down principles to ensure respect for the right to a fair hearing and for the fundamental rights of persons to be re-evaluated. Secondly, both the Constitution and the Vetting Act gave far-reaching independence to the vetting bodies. The Appeal Chamber was attached to the Constitutional Court, and the IQC members enjoyed the status of Supreme Court judges. The Constitution and the Vetting Act granted them a high level of personal protection against threats to life, health and property. The members of the vetting bodies were subject to disciplinary proceedings which, for the sake of avoiding undue external pressure, would be carried out by the Appeal Chamber. Thirdly, the legal framework provided for the right to appeal against the IQC ’ s findings to the Appeal Chamber, which was the only judicial body responsible for examining appeals on questions of fact and law. The proceedings before the Appeal Chamber were governed by the provisions of the Administrative Courts Act. Fourthly, the establishment and role of the IMO, the secretariat of which was funded by the European Commission, provided important additional safeguards for ensuring respect for the right to a fair hearing and fundamental rights. 275. Lastly, the European Commission maintained that, despite the general conformity with the guarantees of a fair hearing and respect for fundamental rights, any shortcoming that might be identified in the conduct of proceedings in individual cases was not to call into question the essential elements of the vetting process. (ii) Respublica 276. Respublica, a non-governmental organisation promoting the protection of and respect for human rights, has been granted leave to intervene in all vetting-related applications in respect of which notice has been given to the Government. The observations submitted in the context of the present application were a continuation of written comments they had submitted in the context of two other pending similar cases: Gashi and Gina v. Albania (no. 29943/18, communicated on 7 September 2018) and Nikehasani v. Albania (no. 58997/18, communicated on 25 January 2019). For this reason, all the written comments they submitted in respect of these applications have been summarised below. 277. Respublica contended that the Government, other than relying on a series of public perception surveys whereby the majority of respondents had replied that they considered corruption in the judiciary to be endemic, as well as on findings by international bodies, had not presented clear and compelling arguments attesting to the need for such a drastic overhaul of the justice system. The vetting model appeared to be predicated on the unsubstantiated premise that a large number of justice system officials were corrupt, without taking into consideration the high level of politicisation of the judiciary, which was very problematic and had become its main threat. 278. Respublica submitted that only three members of the Appeal Chamber had worked as judges in the (rather distant) past, the other members having been either lawyers, legal consultants or legal advisors. It would have been preferable for at least half of its members to have had a solid judicial background. None of the members of the Appeal Chamber appeared to have had expertise in the complicated and highly technical field of disciplinary proceedings against judges. In its view, disciplinary proceedings against judges ought to be carried out by essentially judicial bodies, as this would guarantee that the members of the vetting bodies had the requisite professional background. In addition, Respublica expressed concerns whether the limited mandate of the members raised doubts as to their vulnerability from outside political influence, particularly in the light of the highly politicised nature of the entire vetting process. A 2018 Government decision awarding an end-of-year bonus to members of the vetting bodies raised further doubts as to their objective impartiality. 279. In Respublica ’ s view, there was a lack of clear guidance from the vetting bodies on how to apply the concept of lawful income and lawful assets. The Vetting Act failed to set a meaningful standard that would allow persons to be vetted to foresee the shifting of the burden of proof onto them. As a result, the vetting bodies imposed an impossible burden of proof on the persons being vetted without setting out the evidence that had led to their findings. They further submitted that the vetting bodies had failed to develop a coherent line of case-law concerning other issues, such as the failure of related persons to justify assets. To this, they argued, should be added the failure of the legislature to provide a more graduated range of sanctions instead of the effectively binary outcome (confirmation against dismissal). (c) The Court ’ s assessment 280. Before determining whether the vetting bodies are independent and impartial, the Court will have to establish whether they constitute a “tribunal established by law” to which the applicant had access for the purposes of the Vilho Eskelinen test (see paragraph 239 above). (i) Whether the vetting bodies constitute a ‘ tribunal established by law ’ (1) General principles 281. The Court reiterates the general principles on the notion of a “tribunal established by law” as laid down in the recent Grand Chamber judgment in the case of Guðmundur Andri Ástráðsson v. Iceland ([GC], no. 26374/18, §§ 124-27, 211-13, 219-21, 223 and 229, 1 December 2020 ). 282. The Court further reiterates that an authority which is not classified as one of the courts of the State may, for the purposes of Article 6 § 1, fall within the concept of a “tribunal” in the substantive sense of this expression. According to the Court ’ s settled case-law, a “tribunal” is characterised in that substantive sense of the term by its judicial function, that is to say, determining matters within its competence on the basis of legal rules and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements, “such as independence, in particular of the executive, impartiality, duration of its members ’ terms of office ... ” (see Guðmundur Andri Ástráðsson, cited above, § 219, and the reference cited therein). A power of decision is inherent in the very notion of “ tribunal” (see Mutu and Pechstein v. Switzerland, nos. 40575/10 and 67474/10, § 139, 2 October 2018, and the references cited therein). (2) Application to the case 283. The Court notes that, further to the Assessment Report and the Reform Strategy, the Albanian authorities introduced a number of constitutional amendments and enacted a set of essential statutes to implement the reform in the justice sector. Consequently, all serving judges, prosecutors, legal advisors and assistants were to be subject to a transitional re-evaluation process, which would be carried out by the IQC at first instance and the Appeal Chamber on appeal. 284. The establishment and functioning of the IQC and Appeal Chamber are set forth in Article 179/b of the Constitution, as further supplemented by Articles C and F of the Annex to the Constitution and the Vetting Act, which were enacted by Parliament. In the Court ’ s view, they provide a sufficiently clear legal basis for the establishment of the vetting bodies which would be responsible for carrying out the transitional re-evaluation of judges, prosecutors, legal advisors and assistants (see paragraphs 103, 106, 112, and 122 - 28 above). That the vetting bodies were solely set up with the aim of carrying out the transitional re-evaluation process was also stated in decision no. 2/2017 of the Constitutional Court (see paragraph 169 above). In this connection, the Court points out that, for the purposes of Article 6 § 1, a tribunal need not be a court of law integrated within the standard judicial machinery. It may be set up to deal with a specific subject matter which can be appropriately administered outside the ordinary court system (see Mutu and Pechstein, cited above, § 139 ). 285. The Court further notes that, pursuant to the Vetting Act, the IQC is empowered to deal with all questions of fact and law. It conducts the proceedings in accordance with the Vetting Act, the Code of Administrative Procedure and the Administrative Courts Act (see paragraphs 145, 152, 153 and 178 above). At the end of the proceedings, it takes a decision on the merits of the case. The decision becomes final and binding in the absence of an appeal. If the person being vetted or the Public Commissioner appeals against the IQC ’ s decision, the Appeal Chamber decides on the appeal, considering all matters of fact and law raised in the grounds of appeal. This was further reiterated by the Constitutional Court in its decision no. 2/2017 (see paragraph 176 above). 286. In the present case, the composition of the IQC and Appeal Chamber panels was established in accordance with the law, that is, by drawing lots. The applicant did not make any specific complaint about the procedure relating to the formation of the judicial panels. The IQC, following the examination of all matters of fact and law, made a determination of the applicant ’ s case. On appeal, the Appeal Chamber examined the applicant ’ s grounds of appeal and had full jurisdiction over questions of fact and law. 287. Lastly, both Article 179/b of the Constitution and the Vetting Act, as further evidenced by decision no. 2/2017 of the Constitutional Court, provide that the IQC and Appeal Chamber would exercise their functions independently (see paragraphs 103, 125 and 169 above). 288. In these circumstances, the Court concludes that, having regard to the fact that both the IQC and Appeal Chamber were set up and composed in a legitimate way satisfying the requirements of a “tribunal established by law”, the applicant had access to a “court”, within the meaning of the first condition of the Vilho Eskelinen test. Article 6 § 1 of the Convention therefore applies under its civil head. (ii) Whether the vetting bodies are “independent and impartial” (1) General principles ‒ As regards independence 289. The Court notes that the term “independent” refers to independence vis-à- vis the other powers (the executive and the Parliament) and also vis-à-vis the parties. In order to establish whether a tribunal can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressure and the question whether the body presents an appearance of independence (see, amongst other authorities, Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 190, ECHR 2003 ‑ VI; Oleksandr Volkov, cited above, § 103; and Denisov v. Ukraine [GC], no. 76639/11, § 60, 25 September 2018). 290. The Court reiterates that a very close interrelationship exists between the guarantees of an “independent and impartial” tribunal and the right to a “tribunal established by law”. While they each serve specific purposes as distinct fair trial guarantees, the Court discerns a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers. The Court notes that the need to maintain public confidence in the judiciary and to safeguard its independence vis-à-vis the other powers underlies each of those requirements (see Guðmundur Andri Ástráðsson, cited above, §§ 231 and 233). 291. “Independence” refers, in this connection, to the necessary personal and institutional independence that is required for impartial decision making, and it is thus a prerequisite for impartiality. It characterises both ( i ) a state of mind, which denotes a judge ’ s imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit –, which must provide safeguards against undue influence and/or unfettered discretion of the other state powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (ibid., § 234). ‒ As regards impartiality 292. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and that its existence or otherwise can be tested in various ways. According to the Court ’ s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to ( i ) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII, and Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009 ). 293. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to the tribunal ’ s impartiality from the point of view of the external observer (the objective test), but may also go to the issue of the judge ’ s personal conviction (the subjective test) (see Kyprianou, cited above, § 119). In some cases where it may be difficult to obtain evidence with which to rebut the presumption of the judge ’ s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996 ‑ III, and Otegi Mondragon v. Spain, nos. 4184/15 and 4 others, § 54, 6 November 2018). In this connection, even appearances may be of a certain importance, or in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morice v. France [GC], no. 29369/10, § 78, ECHR 2015). (2) Application to the present case 294. In the present case, the Court, having regard to the applicant ’ s complaint of a lack of independence and impartiality on the part of the vetting bodies (see paragraph 230 above), will examine whether the requirements of an “independent and impartial” tribunal were complied with by both vetting bodies (see, for example, Clarke v. the United Kingdom ( dec. ), no. 23695/02, 25 August 2005, and Rustavi 2 Broadcasting Company Ltd and Others, cited above, § 329-64). In addition, the Court will determine whether the Appeal Chamber was a judicial body which had full jurisdiction. ‒ The IQC 295. To start with the IQC ’ s independence, the applicant took issue with the manner of appointment of the members of the IQC, namely their election en bloc by Parliament. The Court considers that there are a variety of different systems in Europe for the selection and appointment of judges, rather than a single model that would apply to all countries. It reiterates in this connection that although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in its case-law, election or appointment of judges by the executive or the legislature is permissible under the Convention, provided that, once elected or appointed, they are free from influence or pressure and exercise their judicial activity with complete independence (see Sacilor-Lormines v. France, no. 65411/01, § 67, ECHR 2006 ‑ XIII; Flux v. Moldova (no. 2), no. 31001/03, § 27, 3 July 2007; Thiam v. France, no. 80018/12, § 80, 18 October 2018; and Guðmundur Andri Ástráðsson, cited above, § 207 ). 296. While the Court has no reason, in general, to call into question the manner in which the members of the IQC were appointed, it nevertheless remains for it to assess whether, in the present case, the IQC possessed the “appearance of independence” required by the Court ’ s case-law in terms of safeguards against extraneous pressure. The applicant failed to demonstrate that the members of the IQC which dealt with her case had received any instructions or had been subject to any pressure from the executive. The material in the case file does not disclose any evidence of such instruction or pressure being exerted on the panel by the executive. That on the eve of the IQC ’ s announcement of the operative provisions in her case the Prime Minister made a general statement about the progress of the vetting process in general, without any specific link to or mention of her case, could not be taken as an instruction or pressure exerted by the executive on the vetting bodies (see paragraphs 22 and 264 above). The Prime Minister ’ s statement contained general remarks about the ongoing developments of the vetting process and was not directed against a particular case or individual. 297. Turning to the term of office of members, the Court notes that, pursuant to domestic law, members of the IQC have a non-renewable five-year term of office. The Court finds no issue with the fixed duration of the term of office of members of the vetting bodies. Assuming that the fixed period of time was relatively short, this is understandable given the extraordinary nature of the vetting process, as further highlighted by decision no. 2/2017 of the Constitutional Court (see paragraph 164 above). 298. The Court further points out that what matters is the irremovability of members during their term of office, which is considered to be a corollary of their independence (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 80, Series A no. 80, and Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 49, ECHR 2013 (extracts), albeit in the context of a criminal case; see also the general principles emanating from the CJEU ’ s judgments in paragraph 224 above). The absence of any formal recognition of the irremovability of judges in the Vetting Act does not in itself imply a lack of independence, provided that it is recognised in fact and that the other necessary guarantees are present (see Sacilor-Lormines, cited above, § 67). It can be seen from the provisions of the Vetting Act that this is indeed the case. Neither the legislature nor the executive can require the resignation or removal from office of the members of the vetting bodies. Section 17 of the Vetting Act specifies the limited cases where they may be removed from office (see paragraph 127 above). The fact that they can only be removed in the event of the commission of a disciplinary breach, in accordance with the procedure prescribed by law, does not call into question the necessary guarantees for their irremovability, which are present in this case. 299. As regards the non-representation of serving judges in the IQC, the Court has indeed pointed to the need for substantial representation of judges within the relevant disciplinary body (see Oleksandr Volkov, cited above, § 109). This need is all the more important in ordinary disciplinary proceedings against judges and prosecutors. However, the Court must take account of the extraordinary nature of the vetting process of judges and prosecutors in Albania. This process was introduced in response to the urgent need, as assessed by the national legislature, to combat widespread levels of corruption in the justice system. It consists of the assessment of three criteria and precisely targets all serving judges and prosecutors. It is for this reason that the vetting process of judges and prosecutors in Albania is sui generis and must be distinguished from any ordinary disciplinary proceedings against judges or prosecutors. 300. In the Court ’ s view, the fact that members of the IQC did not come from amongst serving professional judges was consistent with the spirit and goal of the vetting process, namely to avoid any individual conflicts of interest and ensure public confidence in the process. The Court further refers to the strict eligibility requirements that members of the IQC were expected to satisfy (see paragraph 123 above). It notes that those members were elected by Parliament in accordance with the procedure prescribed by law (see paragraph 124 above). Furthermore, the status of IQC members is the same as that of Supreme Court judges (see paragraph 106 above). 301. That the Government awarded the IQC an end-of-year bonus in 2018 in recognition of their work is not sufficiently capable, in the Court ’ s view, of calling into question their members ’ independence. The Court notes that the IQC has a statutory obligation to decide the merits of each case independently (see paragraphs 103 and 125 above), and that, as stated above, the applicant failed to demonstrate that its members had not acted independently in her case. 302. The Court further emphasises the importance of the guarantees laid down in the domestic legislation, namely that the IQC has complete discretion in deciding on its organisational structure and personnel; it does not take instructions or directions from the executive. In addition, it makes a proposal for an annual budget allocation by Parliament, free from any intervention by the executive (see paragraph 128 above). 303. Lastly, the Venice Commission and the Constitutional Court concluded that the IQC embodied the characteristics of an independent judicial body (see paragraphs 158 and 169 above). 304. In view of the above, and having regard to the specific circumstances of the applicant ’ s case, the Court sees no evidence of a lack of independence on the part of the IQC. 305. Turning to its impartiality, the Court notes that the applicant did not contest the IQC members ’ subjective impartiality. The Court finds no reason to hold otherwise. According to the applicant, the fear of a lack of impartiality was based on the fact that the IQC carried out the preliminary investigation and subsequently decided on the merits of her case. The Court appreciates that this situation might have given rise to certain misgivings on the part of the applicant as to the impartiality of the IQC, and considers that the case must be examined from the perspective of the objective impartiality test. More specifically, it must address the question of whether the applicant ’ s complaint of a lack of IQC impartiality may be regarded as objectively justified in the circumstances of her case. 306. The Court notes that, unlike ordinary disciplinary proceedings, the vetting proceedings did not commence upon the filing of a complaint or a charge of misconduct. As a result of the automatic operation of the Vetting Act (see paragraph 144 above), the IQC opened an investigation into the three declarations that the applicant had filed (see paragraph 12 above) rather than on the basis of its own findings that disciplinary proceedings had to be brought against her. As a matter of fact, the IQC did not assume the role of a prosecutor by bringing any charges or accusations against the applicant ( compare and contrast Kamenos, cited above, § 105). Its tasks were thus exclusively limited to the re-evaluation of the three criteria laid down in the Annex to the Constitution and the Vetting Act. At the end of the investigation, the IQC made preliminary findings, without drawing any conclusions, and confronted the applicant with those findings, in response to which she was invited to put forward her defence. 307. When giving a decision at the conclusion of the proceedings, the IQC assessed whether the evidence that had been obtained, including the arguments and documents that the applicant had provided in reply, sufficed to confirm her in her position or impose a disciplinary sanction in accordance with the Vetting Act (see paragraph 150 above, and compare and contrast Kamenos, cited above, § 107). A preliminary finding based on the available information, without the benefit of the applicant ’ s defence, cannot by itself be regarded as entailing any prejudice on the final conclusion to be drawn after the applicant’s arguments have been presented at an oral hearing. What is important is for the final decision to be taken on the basis of all the available elements, including the evidence produced and the arguments made at the hearing (see, for example, Hauschildt v. Denmark, 24 May 1989, § 50, Series A no. 154, and Morel v. France, no. 34130/96, § 45, ECHR 2000 ‑ VI ). 308. There is therefore no confusion between the IQC ’ s statutory obligation to open the investigation, in which no charges or findings of misconduct were made against the applicant, and its duty to take a decision on the applicant ’ s disciplinary liability. Such a procedural arrangement is not uncommon in disciplinary or other administrative proceedings in European legal systems. In the Court ’ s view, the mere fact that the IQC made preliminary findings in the applicant ’ s case is not sufficient to prompt objectively justified fears as to the IQC ’ s impartiality. ‒ The Appeal Chamber 309. Turning to the Appeal Chamber, the Court notes that the applicant lodged an appeal against the IQC ’ s decision with the Appeal Chamber. Subsequently, she made additional elaborate submissions challenging each finding made by the IQC. In its decision, the Appeal Chamber, having regard to the applicant ’ s submissions, addressed each of the grounds of her appeal. It even reversed some of the IQC ’ s findings, following a fresh assessment of the evidence in the case file and consideration of the applicant ’ s submissions, thus substituting its own findings of fact for those of the IQC. The Vetting Act and the Annex to the Constitution further empower the Appeal Chamber to quash an IQC decision in its entirety (see paragraphs 112 and 154 above). In these circumstances, the Court is satisfied that the Appeal Chamber, following the examination of the applicant ’ s written appeal and submissions, had full review jurisdiction and gave a detailed decision addressing each of the grounds of her appeal. 310. Lastly, the Court will examine whether the Appeal Chamber complied with the requirements of independence and impartiality. 311. As regards the “appearance of independence” of the Appeal Chamber, the applicant did not put forward any facts capable of calling into question its independence from the executive and the legislature. 312. The Court notes that the members of the Appeal Chamber are appointed, in accordance with the procedure prescribed by the Vetting Act, for a non-renewable term of nine years, which is longer than the term of office of IQC members. The members of the Appeal Chamber enjoy the same status as Constitutional Court judges (see paragraph 106 above). Domestic law further guarantees that members of the Appeal Chamber are appointed as appellate court judges at the end of their term of office (see paragraph 207 above). 313. The irremovability of members of the Appeal Chamber from office, despite the absence of any formal recognition thereof, is also guaranteed by the Vetting Act in the same way as for IQC members. They can be dismissed from office, in accordance with the procedure prescribed by law, in the event of a disciplinary breach. The fact that members of the Appeal Chamber are subject to disciplinary proceedings and bound by rules of judicial discipline and ethics is not in itself a reason to doubt their independence (see also the general principles emanating from the CJEU ’ s judgments in paragraph 224 above). 314. As regards the non-representation of judges in the Appeal Chamber, the Court refers to its findings in paragraphs 299 - 300 above. It also refers to its findings in paragraph 301 above regarding the end-of-year bonus awarded in 2018. It further takes note of the statutory safeguards which likewise apply to the Appeal Chamber, namely that ( i ) it decides the merits of each case independently, (ii) it has complete discretion in deciding on its organisational structure and personnel; (iii) it does not take instructions or directions from the executive, and (iv) it makes a proposal for an annual budget allocation by Parliament, free from any intervention by the executive (see paragraph 128 above). The conduct of the proceedings is further monitored by international observers, which would appear to constitute an additional safeguard (see paragraphs 105, 129 and 130 above). It goes without saying that members of the vetting bodies are subject to the law in general and to the rules of professional ethics in particular (see paragraph 125 above). 315. As regards an alleged lack of impartiality, the applicant failed to adduce any arguments capable of being examined on the merits. 316. In view of the above, and having regard to the specific circumstances of the applicant ’ s case, the Court sees no evidence of a lack of independence and impartiality on the part of the Appeal Chamber. ‒ Conclusion 317. It follows that both the IQC and Appeal Chamber were independent and impartial. Accordingly, there has been no violation of Article 6 § 1 of the Convention in this respect. Compliance with the requirement of fairness (a) The parties ’ submissions 318. The applicant contended that the proceedings before the IQC had lacked the minimum procedural safeguards: she had not been properly informed of the “accusation” made by the IQC and had not had sufficient time to prepare an adequate defence. The IQC had not mentioned any issues relating to the inaccuracy of annual declarations of assets or to possible concealment of assets as part of the findings of the administrative investigation. 319. As the main point of contention of her appeal related to her partner ’ s lawful income for the purchase of the flat measuring 101 sq. m, the applicant had appended two items of evidence to her appeal to the Appeal Chamber, namely a certificate issued by the Albanian company with which her partner had entered into a conditional sales contract in 2003 and a certificate issued by her partner ’ s former Italian employer certifying that he had worked for them from 1995 to 2001 (see paragraph 52 above). Even though both pieces of evidence had been significant for the outcome of the case, the Appeal Chamber had refused to admit the evidence to the case file, giving vague and insufficient reasons in its decision. 320. Lastly, the applicant alleged that the IQC appeared to have questioned representatives of the company with which her partner had entered into the 2003 conditional sales contract, but had failed to disclose this in the proceedings, thus giving rise to a breach of the principle of equality of arms. 321. The Government submitted that the applicant ’ s new pieces of evidence had not been admitted to the case file as they had not complied with the provisions of section 49(2) of the Administrative Courts Act. She had also failed to argue under section 47 of the Administrative Courts Act that she had been unable to submit the evidence to the IQC. Furthermore, the Appeal Chamber had refused to include the evidence, in accordance with section 49(6) of the Administrative Courts Act. 322. In the Government ’ s view, the Appeal Chamber had had full jurisdiction over questions of fact and law. Not only had the Appeal Chamber had jurisdiction to review the case decided by the IQC, it had also exercised constitutional review powers in order to guarantee the applicant ’ s right to an effective appeal before a court. Having regard to its powers, the Appeal Chamber could either uphold or quash the IQC ’ s decision, by giving a reasoned ruling in writing. Both the Venice Commission and the Constitutional Court had highlighted this role. 323. The Government maintained that the applicant had been represented by a lawyer of her own choosing before the Appeal Chamber. She had not advanced any arguments before the Appeal Chamber that she had lacked adequate time or sufficient facilities to mount her defence. Nor had she made any requests to be granted additional time to familiarise herself with the evidence or present new evidence. (b) The Court ’ s assessment (i) General principles 324. The Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, among other authorities, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011). 325. Article 6 of the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‐I). It is for the national courts to assess the relevance of proposed evidence, its probative value and the burden of proof (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 198, ECHR 2012, and Lady S.R.L. v. the Republic of Moldova, no. 39804/06, § 27, 23 October 2018). 326. The Court notes that the right to a fair hearing as guaranteed by Article 6 § 1 of the Convention includes the right of the parties to judicial proceedings to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective, this right can only be seen to be effective if the observations are actually “heard”, that is, duly considered by the domestic courts. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant (see, among other authorities, Perez v. France [GC], no. 47287/99, § 80, ECHR 2004 ‑ I). 327. While Article 6 requires the domestic courts to adequately state the reasons on which their decisions are based, it does not require a detailed answer to every argument put forward by a complainant. This obligation nevertheless presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see, among many other authorities, Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303-A). 328. In view of these relevant general principles, the Court will determine whether the proceedings, taken as a whole, were fair. (ii) Application to the present case 329. The Court notes that, owing to the applicant ’ s inclusion on a priority list of individuals to be subject to transitional re-evaluation, the IQC launched the administrative investigation into the three declarations that the applicant had filed pursuant to the Vetting Act (see paragraph 12 above). The commencement of the investigation was in accordance with the Vetting Act (see paragraph 144 above). At the conclusion of that investigation, the IQC informed the applicant of its preliminary findings. The report expressly stated that preliminary findings had been made to the effect that there had been, amongst other things, ( i ) inconsistencies in relation to the source of income of assets, (ii) a lack of supporting documents relating to the sources of funds which had been used for the acquisition of assets, (iii) insufficient lawful income to justify the excessive amount of liquid assets during certain years, and (iv) inconsistencies in relation to the applicant ’ s share in certain assets (see paragraph 15 above). 330. The IQC made the preliminary findings having examined all the documents it had obtained from various institutions as well as explanations and information that the applicant had provided in reply to its questions. Furthermore, the report referred to the documents which had served as the basis for those findings. In the Court ’ s view, the information that the applicant obtained following the conclusion of the administrative investigation should have enabled her to comprehend the seriousness of the preliminary findings with a view to putting up an adequate defence. 331. That the applicant alleged that the IQC had withheld certain evidence is mere conjecture which has been introduced tardily and has not been substantiated by any evidence. 332. Throughout the proceedings before the IQC, in particular after the shifting of the burden of proof onto the applicant to rebut its preliminary findings, she submitted extensive arguments in her defence and filed numerous written submissions. She was granted access to the case file and to the methodology used to calculate expenses in order to mount a defence. She was given time to submit her pleadings (see paragraph 16 above). There is no indication that she lacked the time and facilities to prepare an adequate defence, as it would appear that she did not make a request or raise concerns to this effect before the IQC or Appeal Chamber. 333. Lastly, the Court observes that the IQC had full jurisdiction over all matters of fact and law. It was specifically set up to interpret and apply the Vetting Act. The assessment of the facts indeed required specialised knowledge or specific professional experience, which is why the Vetting Act indicated the auxiliary bodies that would assist the IQC in discharging its duties (see paragraphs 135 - 42 above). This was also emphasised in the decision of the Constitutional Court, which furthermore added that the ultimate decision-making would lie with the IQC (see paragraphs 169 - 70 above). In the applicant ’ s case, the IQC gave a decision stating adequate reasons for her dismissal from judicial office. 334. Following notification of the IQC ’ s decision, the applicant, who continued to be represented by a lawyer of her own choosing, lodged an extensive appeal with the Appeal Chamber, challenging, amongst other things, the factual evidence that had served as the basis for her dismissal. She also made further written submissions. It is evident from the Appeal Chamber ’ s decision that it examined point by point the grounds of her appeal and scrutinised the findings of fact and law made by the IQC, thus complying with the requirement of “full jurisdiction” in the proceedings before it, as autonomously defined in the light of the object and purpose of the Convention (see Ramos Nunes de Carvalho e Sá, cited above, § 177). Having re-examined the facts and the material in the case file, the Appeal Chamber upheld some of the findings made by the IQC, substituted the assessment made by the IQC for its own and overturned some of the IQC ’ s other findings. In the Court ’ s view, the Appeal Chamber acted consistently with Article F of the Annex to the Constitution and the Vetting Act, which provided that it could uphold, amend or quash an IQC decision (see paragraphs 112 and 154 above). 335. In this connection, the Court considers that the Appeal Chamber gave sufficient reasons for its decision, replying to each of the grounds of the applicant ’ s appeal. The Court is also satisfied that the Appeal Chamber provided adequate reasons for not accepting new evidence which the applicant had submitted to it (see paragraph 60 above). Article 6 requires the domestic courts to adequately state the reasons on which their decisions are based. This obligation presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see paragraph 327 above). 336. In the light of all of the aforementioned circumstances, the Court concludes that there has been no violation of Article 6 § 1 of the Convention as regards the fairness of the proceedings. Compliance with the requirement to hold a public hearing before the Appeal Chamber (a) The parties ’ submissions 337. The applicant submitted that the Appeal Chamber should have held a public hearing in her case in view of the grounds of appeal she had raised, which had disputed matters of fact and law. The Vetting Act did not provide for the possibility of a public hearing before the Appeal Chamber, nor could she submit a request to this effect. There had been no exceptional circumstances to justify dispensing with a public hearing before the Appeal Chamber. 338. The Government argued that the applicant had failed to request a public hearing before the Appeal Chamber, which, in turn, had stated that a public hearing was unnecessary in the circumstances of the present case. The Appeal Chamber ’ s decision had been taken in accordance with section 51 of the Administrative Courts Act. (b) The Court ’ s assessment 339. The Court has held that the right to a public hearing under Article 6 § 1 implies a right to an oral hearing before at least one instance (see, amongst other authorities, Fischer v. Austria, 26 April 1995, § 44, Series A no. 312). The absence of a hearing at second or third instance may be justified by the special features of the proceedings concerned, provided a hearing has been held at first instance (see Salomonsson v. Sweden, no. 38978/97, § 36, 12 November 2002). While not relevant for the present case, the Court notes, conversely, that the lack of a public hearing at first instance may be remedied if a public hearing is held at the appeal stage, provided that the scope of the appellate proceedings extends to matters of law and fact (see, for example, in a disciplinary context, Buterlevičiūtė v. Lithuania, no. 42139/08, §§ 52-54, 12 January 2016). 340. While the obligation to hold a hearing is not absolute, the Court has held that, in the context of disciplinary proceedings against judges, in view of what is at stake, namely the impact of the possible penalties on the lives and careers of the persons concerned and their financial implications, dispensing with an oral hearing altogether should be an exceptional measure and should be duly justified in the light of its case-law (see Ramos Nunes de Carvalho e Sá, cited above, § 210). 341. Turning to the present case, in the first place, the Court observes that the IQC, which was independent and impartial, held a public hearing in which the applicant was represented by a lawyer of her own choosing, made oral pleadings and submitted further evidence in writing ( contrast Ramos Nunes de Carvalho e Sá, cited above, § 209). In order to examine this additional evidence, the IQC had to adjourn without taking a decision in the applicant ’ s case. 342. Secondly, there is no indication from her appeal and additional written submissions that the applicant requested a public hearing on appeal ( contrast Ramos Nunes de Carvalho e Sá, cited above, § 209). While the Vetting Act does not expressly provide for or bar the possibility of a public hearing before the Appeal Chamber, the Court notes that the vetting bodies apply, inter alia, the procedures set out in the Administrative Courts Act whenever such procedures have not been set out in the Vetting Act (see paragraph 125 above). In this connection, section 51 of the Administrative Courts Act lists down the conditions for the holding of a public hearing on appeal (see paragraph 196 above). The Appeal Chamber, despite the absence of a request from the applicant for this purpose, provided adequate reasons in its decision not to hold a public hearing in the applicant ’ s case (see paragraph 61 above). 343. Lastly, the Court will determine whether, despite the holding of a public hearing before the IQC and despite the absence of a request to that effect by the applicant before the Appeal Chamber, the nature of the proceedings required that a public hearing on appeal be held. In this connection, the Court notes that the applicant had ample opportunity to present her case in writing to the Appeal Chamber (compare Vilho Eskelinen, cited above, § 74). The grounds of appeal related, for the most part, to legal issues or rather technical questions concerning the evaluation of assets that could be dealt with satisfactorily on the basis of the case file alone ( see, mutatis mutandis, respectively, Varela Assalino v. Portugal ( dec. ), no. 64336/01, 25 April 2002, and Schuler- Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263). The proceedings did not require the hearing of witnesses or the taking of other oral evidence. Having regard to the foregoing, the Court does not find that the nature of the proceedings required a public hearing on appeal before the Appeal Chamber. 344. There has accordingly been no breach of Article 6 § 1 of the Convention as regards the lack of a public hearing before the Appeal Chamber. Compliance with the principle of legal certainty (a) The parties ’ submissions 345. The applicant submitted that the Vetting Act did not provide any specific statutory limitations as regards the evaluation of assets. This had allowed the vetting bodies to examine transactions that had taken place in the very distant past, leading to an unreasonable shifting of the burden of proof. The applicant had ultimately been dismissed from office on account of circumstances and facts dating back as early as the 1990s, in order to justify the purchase of a flat with her partner ’ s income. The far-reaching temporal scope of the vetting process had put the applicant in an impossible position for objective reasons. 346. The Government submitted that the IQC had launched a thorough investigation into the declaration of assets that the applicant had filed pursuant to the Vetting Act. The IQC had used as evidence annual declarations of assets which the applicant and her partner had filed with HIDAACI. The verification and comparison of all the declarations of assets had enabled the IQC to track the progress and truthfulness of the disclosure of assets and draw conclusions on the sufficiency of the disclosure or the lawfulness of income over the years, as well as on the source used for the creation of assets. Upon the closure of the administrative investigation, the IQC considered that the evidence it had obtained had a probative value towards establishing the facts and circumstances surrounding the applicant ’ s case. 347. In these circumstances, it had informed the applicant of its preliminary findings and shifted the burden of proof onto her in order to prove the contrary. Each finding had been supported by the evidence on which it was based. It had been open to the applicant to determine how to best mount her defence and provide any documents in support of her defence. She had had to show that she had taken all the steps to obtain or procure evidence in support of her claims, at the conclusion of which the vetting bodies would determine whether a failure to provide any supporting documents had been justified on reasonable grounds. Such a procedural guarantee had been introduced to address the post-1990s situation in Albania and had warranted, in observance of the principle of proportionality, a discretionary assessment of each case by the vetting bodies, without hindering or tainting the successful outcome of the vetting proceedings. (b) The Court ’ s assessment 348. The Court has held that limitation periods serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent any injustice which might arise if the courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time. Limitation periods are a common feature of the domestic legal systems of the Contracting States as regards criminal, disciplinary and other offences (see Oleksandr Volkov, cited above, § 137). 349. However, the Court considers that the special features of the widely used processes of audit of assets must also be taken into account. In the Court ’ s view, given that personal or family assets are normally accumulated over the course of working life, placing strict temporal limits for the evaluation of assets would greatly restrict and impinge on the authorities ’ ability to evaluate the lawfulness of the total assets acquired by the person being vetted over the course of his or her professional career. In this connection, an evaluation of assets manifests certain specificities, unlike ordinary disciplinary enquiries, which would call for a greater degree of flexibility to be granted to the respondent State for the application of statutory limitations, consistent with the objective of restoring and strengthening public trust in the justice system and ensuring a high level of integrity expected of members of the judiciary. This is all the more true in the Albanian context where prior verification of declarations of assets had not been particularly effective (see paragraphs 220 and 272 above). Finally, it can also be a matter of interpretation as to when exactly a specific disciplinary offence may have occurred in this context, that is, whether at the time the asset was initially acquired or at a later point in time when the asset was disclosed in a periodic declaration of assets. At the same time, such flexibility cannot be unlimited and the implications for legal certainty and an applicant ’ s rights under Article 6 § 1 of the Convention should be considered on a case-by-case basis. 350. Turning to the present case, the Court notes that the applicant ’ s judicial career started in 1995 and continued uninterruptedly until her removal from office in 2018. The adverse findings against her were based both on the disclosure made in her vetting declaration of assets and prior asset declarations filed by her and her partner. The objective of the evaluation of assets was to check the lawfulness of the source of acquisition of assets and verify the truthfulness of the vetting declaration of assets against prior annual declarations of assets. It was for this reason that the vetting bodies would use as evidence prior annual declarations of assets that she had filed with HIDAACI to ensure that all assets, including the lawful financial sources which had served as a basis for their acquisition, had been accurately disclosed and justified. 351. The vetting bodies examined assets of which the underlying financial sources had been secured in the 1990s or 2000s. It is understandable that the applicant was placed in a somewhat difficult position to justify the lawful nature of the financial sources owing to the passage of time and the potential absence of supporting documents. However, this situation was partly due to the applicant ’ s own failure to disclose the relevant asset at the time of its acquisition, which was much closer in time to the period during which the underlying financial sources had been secured by her and her partner. In addition, the Court observes that section 32(2) of the Vetting Act provides attenuating circumstances if a person being vetted faces an objective impossibility to submit supporting documents (see paragraph 136 above). In the applicant ’ s case, the vetting bodies held that the applicant had not provided any supporting documents justifying the existence of an objective impossibility to demonstrate the lawful nature of her partner ’ s income from 1992 to 2000 (see paragraphs 28 and 69 above). The Court further considers it important to note the Appeal Chamber ’ s finding that the applicant ’ s partner ’ s savings, even if they were to be accepted as claimed, would have not sufficed to buy the asset in question (see paragraph 70 above). 352. The Court further reiterates that it is not per se arbitrary, for the purposes of the “civil” limb of Article 6 § 1 of the Convention, that the burden of proof shifted onto the applicant in the vetting proceedings after the IQC had made available the preliminary findings resulting from the conclusion of the investigation and had given access to the evidence in the case file (see Gogitidze and Others v. Georgia, no. 36862/05, § 122, 12 May 2015, in the context of forfeiture proceedings in rem, and, mutatis mutandis, Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, §§ 37-49, 23 September 2008, in the context of a confiscation order in drug-trafficking cases). 353. Consequently, the Court finds that, having regard to the evaluation process of personal or family assets amassed during a judge ’ s professional lifetime, the attenuating circumstances provided for in the Vetting Act, the applicant ’ s failure to submit supporting documents attesting to the objective impossibility to demonstrate the lawful nature of her partner ’ s income and her own omission to disclose the asset at the relevant time she had acquired it, there has been no violation of Article 6 § 1 of the Convention as regards the alleged breach of the principle of legal certainty. Alleged violation of Article 8 of the Convention 354. The applicant complained that there had been a breach of Article 8 of the Convention on account of her unlawful and arbitrary dismissal from office and the lifetime ban imposed on her practising law. 355. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private ... life .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” AdmissibilityAs regards the complaint concerning the applicant ’ s dismissal from office As regards the complaint concerning the applicant ’ s dismissal from office As regards the complaint concerning the applicant ’ s dismissal from office (a) The parties ’ submissions 356. Referring to the Court ’ s judgment in the case of Denisov (cited above), the Government contended that Article 8 was not applicable as the applicant had failed to demonstrate that the threshold of severity had been attained in respect of the three criteria elaborated therein. Furthermore, the imposition of a disciplinary sanction could not in itself give rise to a breach of reputation if no serious consequences resulted therefrom. The Government further submitted that the applicant had failed to invoke a breach of Article 8 of the Convention before the Appeal Chamber. 357. The applicant maintained that her dismissal from office had satisfied the threshold of the criteria laid down in Denisov (cited above), as a result of which Article 8 was applicable. She had appealed against her dismissal, the consequences of which were evident in her private life, before the Appeal Chamber. In those circumstances, she had exhausted all domestic remedies. (b) The Court ’ s assessment (i) Applicability of Article 8 358. As the Government have contested the applicability of Article 8 of the Convention to the applicant ’ s case, the Court will first examine this plea of inadmissibility. (1) General principles 359. In the case of Denisov (cited above), the Grand Chamber confirmed that employment-related disputes were not per se excluded from the scope of “private life” within the meaning of Article 8 of the Convention. There are some typical aspects of private life which may be affected in such disputes by dismissal, demotion, non-admission to a profession or other similarly unfavourable measures. These aspects include ( i ) the applicant ’ s “inner circle”, (ii) the applicant ’ s opportunity to establish and develop relationships with others, and (iii) the applicant ’ s social and professional reputation. There are two ways in which a private-life issue would usually arise in such a dispute: either because of the underlying reasons for the impugned measures (in that event the Court employs the reason-based approach) or – in certain cases – because of the consequences for private life (in that event the Court employs the consequence-based approach – ibid., § 115). 360. If the consequence-based approach is applied, the threshold of severity with respect to all the above-mentioned aspects assumes crucial importance. It is for the applicant to convincingly show that the threshold was attained in his or her case. The applicant has to present evidence substantiating consequences of the impugned measure. The Court will only accept that Article 8 is applicable where these consequences are very serious and affect his or her private life to a very significant degree (see Denisov, cited above, § 116 ). 361. The Court has established criteria for assessing the severity or seriousness of alleged violations in different regulatory contexts. An applicant ’ s suffering is to be assessed by comparing his or her life before and after the measure in question. The Court further considers that in determining the seriousness of the consequences in employment-related cases it is appropriate to assess the subjective perceptions claimed by the applicant against the background of the objective circumstances existing in the particular case. This analysis would have to cover both the material and the non-material impact of the alleged measure. However, it remains for the applicant to define and substantiate the nature and extent of his or her suffering, which should have a causal connection with the impugned measure. Having regard to the rule of exhaustion of domestic remedies, the essential elements of such allegations must be sufficiently raised before the domestic authorities dealing with the matter (see Denisov, cited above, § 117). (2) Application of the general principles to the present case 362. The Court notes that, in assessing the applicability of Article 8 in the present case, that provision cannot be applicable under the reason-based approach: the applicant ’ s dismissal from judicial office related to her position as a judge and had no connection with her private life. While acquisition or creation of assets could be considered to be an aspect of private life, it is not the number or size of assets or an individual ’ s lifestyle as such that could give rise to disciplinary liability, but the individual ’ s inability to justify the lawfulness of the source used for their acquisition or creation and to ensure public trust in his or her integrity. In any event, the Court considers that an audit of assets does not involve an intimate aspect of private conduct that is itself treated as an ethical breach (contrast Özpınar v. Turkey, no. 20999/04, 19 October 2010). 363. As far as the consequence-based approach is concerned, the Court observes the following. The applicant was dismissed from her judicial post pursuant to the Vetting Act, losing all her remuneration with immediate effect (see Polyakh and Others, cited above, § 208-09; contrast J.B. and Others v. Hungary ( dec. ), no. 4543 4/12 and 2 others, §§ 132-33, 27 November 2018 and Camelia Bogdan v. Romania, no. 36889/18, §§ 85-86, 20 October 2020). This undoubtedly had serious consequences for her “inner circle”, that is, her well-being and family members. Additionally, the vetting bodies further examined her professional competence and found that she had undermined public trust in the justice system (contrast J.B. and Others ( dec. ), cited above, § 136 ). A further consequence of this finding is that in the eyes of society, the applicant was and continues to be stigmatised as being unworthy of performing a judicial function. 364. In view of these observations, the Court considers that Article 8 of the Convention applies in the present case and therefore rejects the Government ’ s objection. (ii) Exhaustion of domestic remedies 365. Having found that Article 8 applies to the present case, the Court reiterates that the applicant challenged the IQC ’ s decision by lodging an appeal with the Appeal Chamber. The detailed grounds of appeal challenged each finding made by the IQC which led to her dismissal, affecting her right to respect for her private life. The Appeal Chamber did not decline jurisdiction in the matter, but examined the case on the merits in accordance with the Vetting Act. 366. In view of the above, by pursuing the avenue of redress provided for in the Vetting Act, the Court concludes that the applicant raised in substance her complaints under Article 8 and thus complied with the requirements of Article 35 § 1 of the Convention. The Government ’ s objection of non-exhaustion of domestic remedies must therefore be rejected. (iii) Conclusion 367. The Court, noting that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, declares it admissible. As regards the complaint concerning the lifetime ban on the applicant ’ s practising law (a) The parties ’ submissions 368. The Government submitted that the applicant had failed to raise this complaint under Article 8 before the domestic authorities. She had not instituted any legal proceedings, this right having a separate and independent existence from the outcome of the vetting proceedings. The Government further submitted that this complaint was manifestly ill-founded as the conditions provided for in the Lawyers ’ Act did not intend to preclude individuals removed from the judiciary as a result of the vetting proceedings from practising law. 369. The applicant submitted that she was in possession of a licence to practise law. The gist of her complaint was, however, that she risked being disbarred, pursuant to the Lawyers ’ Act, without any possibility of becoming a member of the Chamber of Advocates. (b) The Court ’ s assessment 370. The Court reiterates that, in order to be able to lodge an application under Article 34, a person must be able to claim to be a victim of a violation of the rights set forth in the Convention. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure: the Convention does not envisage the bringing of an actio popularis for the interpretation of the rights it contains or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention. However, it is open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to modify his conduct or risks being prosecuted or if he is a member of a class of people who risk being directly affected by the legislation (see, for example, Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010, and the references cited therein, and Michaud v. France, no. 12323/11, § 51, ECHR 2012). 371. In the present case, the Court notes that the proceedings were governed by, and concluded in pursuance of, the Vetting Act. The vetting bodies did not take any decision whatsoever concerning the applicant ’ s right to practise law; nor did they make any reference, even implicitly, to the provisions of the Lawyers ’ Act. Furthermore, the applicant submitted that she was in possession of a licence to practise law. In these circumstances, the Court notes that she cannot claim to be a victim of a breach of her rights under Article 8 of the Convention. 372. That the applicant alleges to become a potential victim in the future on account of a risk of being disbarred, pursuant to the Lawyers ’ Act (see paragraph 208 above), is a mere suspicion or conjecture on her part. To date, she has not been affected by an adverse individual decision taken against her. In the Court ’ s view, it is open to her to challenge any unfavourable decision that the Chamber of Advocates might take against her in the future before a court of law, and thus provide the respondent State the possibility of remedying any alleged violation of her Convention rights, as required by Article 35 § 1 of the Convention. Furthermore, the applicant did not demonstrate that the scope of application of the Lawyers ’ Act was specifically directed against judges or prosecutors against whom a decision had been given in the course of vetting proceedings (compare and contrast Tănase, cited above, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009 ). In sum, the applicant would not be required to modify any conduct under the Lawyers ’ Act; she would be subject to the statutory requirements of that Act. 373. Consequently, the Court holds that, in the circumstances of the present case, this complaint is incompatible ratione personae and must be dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Merits 374. The Court will now examine whether on account of the applicant ’ s dismissal from office there was an interference with the applicant ’ s right to respect for her private life, and if so, whether the interference was justified. Whether there was an interference (a) The parties ’ submissions 375. The applicant contended that the decision to dismiss her from judicial office had constituted interference under Article 8 of the Convention. 376. In view of their submissions relating to the non-applicability of Article 8 of the Convention, the Government maintained that there had been no interference in the present case. (b) The Court ’ s assessment 377. In view of the considerations in paragraphs 363 and 364 above regarding the applicability of Article 8 of the Convention, the Court considers that, as a result of her dismissal from office, there has been an interference with the applicant ’ s right to respect for her private life (see, for example, Özpınar, cited above, §§ 47-48, and Kulykov and Others v. Ukraine, nos. 5114/09 and 17 others, § 138, 19 January 2017). 378. The above-mentioned interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned (see Jankauskas v. Lithuania (no. 2), no. 50446/09, § 71, 27 June 2017). Whether the interference was “in accordance with the law” (a) The parties ’ submissions 379. The applicant submitted that the statutory provisions of the Vetting Act lacked clarity and accessibility. In particular, there was a lack of clarity relating to the method used by the vetting bodies to calculate living and travel expenses. Also, the Vetting Act did not contain a definition of the phrase “undermining public trust in the justice system”. Its interpretation and application granted a broad margin of discretion to the vetting bodies. There had been no situation giving rise to a conflict of interest under domestic law in relation to her participation in the Constitutional Court bench which had examined the constitutional appeal lodged by a member of the public. In her case, the vetting bodies had had unfettered discretion in the interpretation and application of the Vetting Act. 380. The Government submitted that the provisions of the Vetting Act were clear, well defined and comprehensible. The Act did not contain any contradictions and its provisions provided for certainty, clarity and continuity. The concept of lawfulness of assets was prominent in domestic law, whether in statutes relating to the disclosure of assets or the prevention of money laundering. For an asset to be considered lawful, two conditions had to be satisfied: the income used for its creation or acquisition had to originate from a lawful activity, and the income ought to have been subject to the payment of applicable taxes or duties. The cumulative fulfilment of these two conditions was clearly provided for in Article D of the Constitution and section 3 of the Vetting Act. 381. According to the Government, the basis for finding an insufficient declaration of assets was the vetting declaration of assets. Under section 61(3) of the Vetting Act, read in conjunction with section 33, an insufficient declaration of assets would take place if a finding was made to the effect that there was an absence of financial sources, a concealment of assets, a false disclosure of assets or a conflict of interest. Prior declarations of assets could be used as evidence by the IQC and Appeal Chamber. 382. The Government submitted that living expenses were calculated by reference to an individual ’ s declaration, evidence obtained by the vetting bodies from national and foreign institutions, prior declarations of assets and evidence collected by banking and non-banking institutions. Such evidence would be subject to adversarial proceedings, as a result of which the person being re-evaluated would be invited to submit his or her own evidence in support of his or her position. All the evidence would be subject to numerical and logical checks and the IQC would make an individualised decision in respect of each case, regard being had to its factual specificities. 383. The Government submitted that the determination of whether an individual had undermined public trust in the justice system resulted from the examination of the evidence by the vetting bodies. (b) The Court ’ s assessment 384. The expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its consequences (see, among other authorities, Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts)). In order for the law to meet the requirement of foreseeability, it must set forth with sufficient precision the conditions in which a measure may be applied, to enable the person concerned – if need be, with appropriate advice – to regulate his or her conduct (see, as a recent example, Altay v. Turkey (no. 2), no. 11236/09, § 54, 9 April 2019). 385. The Court notes that, following the examination of the re-evaluation criteria, the applicant was dismissed from office on two main grounds. Firstly, as regards the evaluation of assets, she was found to have made a false declaration and concealed the flat measuring 101 sq. m. Secondly, as regards the evaluation of professional competence, the applicant had undermined public trust by failing to recuse herself from the examination of a constitutional complaint. The Court will examine each of the grounds below in order to determine whether the interference was in accordance with the law. 386. As regards the false disclosure and concealment of a flat measuring 101 sq. m, the Court notes that the vetting bodies ’ decisions were based on the Vetting Act and prior legislation on asset disclosure. Not only had the Vetting Act been published, it had also been subject to constitutional review proceedings. In the Court ’ s view, the interference met the qualitative requirements of accessibility and foreseeability. 387. As regards the finding that the applicant had undermined public trust in the justice system, the Court notes that even though this ground for dismissal from office is formulated in rather broad terms, it is not uncommon to have such a provision in disciplinary law and rules of judicial discipline. That provision should normally be read and interpreted in conjunction with other more specific disciplinary rules, as in force at the material time, sanctioning breaches of an ethical or professional nature. In the present case, the grounds provided for in the Vetting Act were supplemented by the statutory provisions in force at the relevant time governing the recusal of Constitutional Court judges and other judges, namely section 36(1)(c) of the Constitutional Court Act and Article 72 of the CCP, to which the IQC and Appeal Chamber referred in their decisions. In these circumstances, the Court finds that the interference was sufficiently foreseeable. 388. The Court is satisfied that the interference with the applicant ’ s private life was in accordance with the law, as required by Article 8 § 2 of the Convention. The Court will therefore examine below whether such interference pursued one or more of the legitimate aims listed in Article 8 § 2 of the Convention, and whether it was “necessary in a democratic society” in order to achieve the aim or aims concerned. Whether the interference pursued a legitimate aim (a) The parties ’ submissions 389. The applicant contended that the interference had not pursued any legitimate aim. The legitimate aim put forward in the Government ’ s submissions, namely the cleansing of the judiciary from corruption, could have been achieved by less intrusive means, such as compulsory training for judges. The European Commission had not called for a widespread vetting of the serving judges and prosecutors in order to eradicate corruption. 390. The Government submitted, with reference to the Assessment Report, that a number of problems had been identified. Those problems had warranted the need to introduce structural changes, which had culminated with the constitutional amendments and the enactment of a set of essential statutes. The Government referred to the legitimate aims which the Constitutional Court had identified in the abstract constitutional review of the Vetting Act. (b) The Court ’ s assessment 391. The Court notes that the Assessment Report referred to a number of public perception surveys and numerous reports which demonstrated a high incidence of corruption in the justice system (see paragraph 4 above). In this connection, GRECO had also highlighted the pervasive extent of corruption in the judiciary in its reports since 2002 (see paragraphs 217 - 20 above). 392. It is important to note that the aim of the Vetting Act, as stated in section 1, is to “guarantee the proper functioning of the rule of law, the true independence of the justice system, as well as the restoration of public trust in the institutions of [that] system” (see paragraphs 102 and 120 above). The Venice Commission also stated that the vetting of judges and prosecutors “was not only justified but necessary to protect [the country] from the scourge of corruption, which, if not addressed, could completely destroy the judicial system” (see paragraph 96 above). The Constitutional Court further added that any restrictions imposed by the Vetting Act were justified by the public interest of reducing the level of corruption and restoring public trust in the justice system, which in turn was connected to interests of national security, public order and the protection of rights and freedoms of others (see paragraph 175 above). 393. In these circumstances, the Court sees no reason to doubt that the aim pursued by the Vetting Act in general, and the interference in the applicant ’ s case in particular, was consistent with aims identified in the Constitutional Court ’ s decision and in the interests of national security, public safety and the protection of the rights and freedoms of others, as listed in Article 8 § 2 (see also Ivanovski, cited above, 179). Whether the interference was “necessary in a democratic society” (a) The parties ’ submissions (i) The applicant 394. The applicant submitted that her dismissal from office had been disproportionate. The vetting bodies had not given adequate reasons justifying her dismissal from office. They had not considered that she had been faced with an objective impossibility to demonstrate the lawful sources of income which her partner had earned more than twenty years earlier. Furthermore, the vetting bodies had extensively interpreted the domestic law and unjustly found that she had been a party to the 2003 and 2005 off-plan contracts. 395. In her view, her partner ’ s living expenses in the 1990s had been wrongly determined on the basis of the Italian Institute of Statistics data for the years 2002 to 2004. Some travel expenses had been arbitrarily attributed to her, even though they had been incurred for business purposes and had been borne by the host institutions. 396. The vetting bodies had overstepped the boundaries demarcated by the Vetting Act and dismissed her on account of annual declarations of assets which she had filed with HIDAACI and in respect of which there had been a positive assessment. The Vetting Act did not contain a definition of the phrase “undermining public trust in the justice system”. Its interpretation and application granted a broad margin of discretion to the vetting bodies. There had been no situation giving rise to a conflict of interest under domestic law. Furthermore, the vetting bodies had singled out just one episode in her 20-year long career. 397. In the applicant ’ s view, there were no procedural safeguards to prevent an arbitrary application of the law. The legislation did not set out an appropriate scale of sanctions for disciplinary offences, and no rules had been developed to ensure their application in accordance with the principle of proportionality. (ii) The Government 398. The Government submitted that the applicant had been subject to the vetting proceedings, which had to be distinguished from ordinary disciplinary proceedings. Her statutory obligations to disclose assets had already been enshrined in law since 2003. The concept of lawfulness of assets was prominent in domestic law, whether in statutes relating to the disclosure of assets or the prevention of money laundering. For an asset to be considered lawful, two conditions had to be satisfied: the income used for its creation or acquisition had to originate from a lawful activity, and the income ought to have been subject to the payment of the applicable taxes or duties. The cumulative fulfilment of these two conditions was clearly provided for in Article D of the Constitution and section 3 of the Vetting Act. 399. The legislature had provided for the existence of an objective impossibility that persons to be vetted would face in obtaining evidence. This was due to ( i ) the country ’ s legacy emerging from a communist regime where no taxes were paid, (ii) the informal economy, which was stimulated by the difficult economic situation and the incapability of public institutions, (iii) poor fiscal culture and awareness in the country, which did not have effective law enforcement mechanisms, and (iv) a lack of professionalism on the part of the law enforcement administration. 400. According to the Government, the basis for finding an insufficient declaration of assets had been the vetting declaration of assets. Under section 61(3) of the Vetting Act, read in conjunction with section 33, an insufficient declaration of assets would take place if a finding was made to the effect that there was an absence of financial sources, a concealment of assets, a false disclosure of assets or a conflict of interest. Prior declarations of assets could be used as evidence by the IQC and Appeal Chamber. 401. Lastly, the sanction imposed on the applicant had been proportionate to the findings made by the vetting bodies, namely that she had made a false declaration and concealed an asset, had made an inaccurate declaration of other assets and had been found to have undermined public trust in the justice system. In the Government ’ s view, the State required civil servants to be loyal to the constitutional principles on which it was founded. (b) The Court ’ s assessment 402. The Court reiterates that any interference with the right to respect for private life will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, Fernández Martínez, cited above, § 124, and Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 174, 15 November 2016). While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, for example, Polyakh and Others, cited above, § 283). 403. The Court further notes that dismissal from office is a grave – if not the most serious – disciplinary sanction that can be imposed on an individual. The imposition of such a measure, which negatively affects an individual ’ s private life, requires the consideration of solid evidence relating to the individual ’ s ethics, integrity and professional competence. 404. In the present case, as stated in paragraphs 391 and 392 above, the Court notes that the Vetting Act was enacted further to the Assessment Report and the Reform Strategy, as well as substantial constitutional amendments. It responded to alarming levels of corruption in the judiciary, as assessed by the national legislature and other independent observers, and to the urgent need to combat corruption, which had also been highlighted in the Constitutional Court ’ s decision. The Court therefore considers that, in such circumstances, a reform of the justice system entailing the extraordinary vetting of all serving judges and prosecutors responded to a “pressing social need”. 405. The question which remains to be answered is whether, in the circumstances of the applicant ’ s case, the domestic authorities overstepped the respondent State ’ s margin of appreciation. Consequently, the Court will examine whether the vetting bodies carried out an individualised assessment of the grounds which led to the imposition of the disciplinary sanction of dismissal from office, namely the evaluation of assets and professional competence. 406. The Court observes that the vetting bodies examined the applicant ’ s vetting declaration of assets. In accordance with the Vetting Act, the applicant was required to justify the underlying lawful sources which had served as the basis for the acquisition of her assets. The Court reiterates that, in line with Albania ’ s treaty law commitments, the requirement to disclose assets and justify their lawful origin has been enshrined in domestic law since 2003, which also prescribes sanctions for failure to disclose assets or false disclosure thereof (see paragraphs 204 and 212 above). This is the reason why the Vetting Act, as further confirmed by the Appeal Chamber, provided for the use of previous declarations of assets as evidence to verify the truthfulness of the vetting declaration of assets (see paragraphs 136 and 188 above). 407. As regards the flat measuring 101 sq. m, the Appeal Chamber upheld the IQC ’ s finding that the applicant had made a false declaration and concealed the asset. As regards her arguments that the vetting bodies had misinterpreted the law, the Court holds that it is in the first place for the national authorities, and notably the courts, to interpret domestic law. Unless the interpretation is arbitrary or manifestly unreasonable, the Court ’ s role is limited to verifying compatibility with the Convention of the effects of such an interpretation (see, amongst other authorities, Radomilja and Others [GC], cited above, § 149 ). In the present case, the Court notes that two of the applicant ’ s assets had been acquired on the basis of an off-plan contract, which, as interpreted by the vetting bodies, was – and continues to be – one of the ways to acquire property rights under law in Albania. After careful examination of the evidence in the case file, the vetting bodies concluded that the applicant had also been a party to the underlying contracts which had served as the basis for and contributed to the acquisition of the flat measuring 101 sq. m which she had failed to disclose for a number of years, until 2011 (see paragraphs 25 and 67 above). The Court does not find anything arbitrary or manifestly unreasonable in the domestic decisions. Moreover, it notes that, according to the Bangalore Principles of Judicial Conduct, judges, who, by the nature of their work are considered to be guarantors of the rule of law, must be required to meet particularly high standards of integrity in the conduct of their private matters out of court – “above reproach in the view of a reasonable observer” – in order to maintain and enhance the confidence of the public and “reaffirm the people ’ s faith in the integrity of the judiciary”. 408. As to the existence of sufficient and lawful income for the purchase of the underlying properties which had contributed to the purchase of the flat measuring 101 sq. m, the Court further notes that the Appeal Chamber found that the applicant and her partner had not been in possession of a sufficient income (see paragraph 71 above). 409. As regards the determination of the applicant ’ s financial situation, the Court notes that the Appeal Chamber carried out a reassessment of her and her partner ’ s assets and liabilities, finding that they lacked lawful income to justify liquid assets. Since the evaluation was focused on facts specific to living and travel expenses and was adduced on the basis of evidence examined by the vetting bodies, the Court ’ s task, as also indicated in paragraph 402 above, is not to substitute its finding for those of the national authorities. The Court takes further note of the Appeal Chamber ’ s finding of a serious failure on the part of the applicant to disclose the origin of money in her foreign bank accounts, there having been no evidence of any bank transfers, and her partner ’ s failure to disclose in due time a large amount of cash, in breach of the statutory provisions (see paragraphs 33, 75 and 77 above). 410. As regards the evaluation of professional competence, the Appeal Chamber upheld the IQC ’ s finding that the applicant ’ s failure to recuse herself from a set of constitutional proceedings had undermined public trust in the justice system. Having regard to the decisions given by the IQC and Appeal Chamber and the circumstances of the present case, the Court considers that, for the reasons given below, the vetting bodies did not give adequate reasons to justify such a finding. In the first place, the applicant ’ s father had been a member of an appellate court bench which had decided that the prosecution of certain individuals, who had been convicted of forgery of documents at first instance, was time-barred. The appellate court bench did not therefore examine the merits of the case and rule on the charge of forgery of documents. As to the applicant, she was called upon to examine a constitutional complaint relating to a separate set of civil proceedings. Secondly, since neither she nor her father had any other personal conflict of interest in either set of proceedings, the Court is not convinced that the vetting bodies sufficiently demonstrated the existence of doubts as to the applicant ’ s impartiality. The Court is mindful that, while the Contracting States are under an obligation to organise their legal system so as to ensure compliance with the requirements of the right to a fair hearing, impartiality being unquestionably one of the foremost of those requirements, automatic disqualification of a judge who has blood ties with another judge who has heard another set of proceedings concerning one or all parties to the proceedings is not always called for, particularly for a country the size of Albania (see, for the application of this principle, Dorozhko and Pozharskiy v. Estonia, nos. 14659/04 and 16855/04, § 53, 24 April 2008; Ramljak v. Croatia, no. 5856/13, §§ 29-42, 27 June 2017; Nicholas v. Cyprus, no. 63246/10, § 62-65, 9 January 2018; and Koulias v. Cyprus, no. 48781/12, §§ 61-66, 26 May 2020 ). Thirdly, there is no indication that the parties to the constitutional proceedings raised an objection to the applicant ’ s participation in the bench, even though she bore the same last name as that of her father. 411. Notwithstanding the above reasons regarding the evaluation of the applicant ’ s professional competence, the Court considers that the findings made by the Appeal Chamber in respect of the evaluation of assets, as described in paragraphs 407 - 09 above and taken cumulatively, were sufficiently serious under national law and could in themselves justify the applicant ’ s dismissal from office. 412. The Court further considers that, having regard to the domestic courts ’ individualised findings in paragraphs 407 - 09 above, the applicant ’ s dismissal from her post as Constitutional Court judge was proportionate. Indeed, the Vetting Act provides for two types of disciplinary sanctions: dismissal from office or suspension with the obligation to attend compulsory education. The Court has held, inter alia, that the absence of an appropriate scale of sanctions for disciplinary offences may be inconsistent with the principle of proportionality (see Oleksandr Volkov, § 182). The Court must emphasise, in this connection, that the Constitutional Court Act provides for a more detailed hierarchy of disciplinary sanctions, as described in paragraph 200 above, which would be imposed at the end of ordinary disciplinary proceedings. However, vetting proceedings are sui generis in nature, despite the similarities that they appear to have with ordinary disciplinary proceedings. They were introduced in response to the perceived pervasive presence of corruption in the justice system in order to rid it of corrupt elements and preserve the healthy part of the system. In the exceptional circumstances which preceded the adoption of the Vetting Act, as also highlighted in paragraphs 391, 392 and 404 above, the Court finds it consistent with the spirit of the vetting process to have a more limited scale of sanctions in the event a person fails to satisfy one of the three criteria laid down in the Vetting Act. 413. The Court further observes that, under the Status of Judges and Prosecutors Act, the applicant ’ s dismissal from office entailed a lifetime ban on re-entering the justice system. In this connection, the Court reiterates that judges, and especially those occupying posts entailing a high degree of responsibility such as the posts in which the applicant wishes to resume employment, wield a portion of the State ’ s sovereign power. The lifetime ban imposed on the applicant and other individuals removed from office on grounds of serious ethical violations is not inconsistent with or disproportionate to the legitimate objective pursued by the State to ensure the integrity of judicial office and public trust in the justice system (see, mutatis mutandis, Naidin v. Romania, no. 38162/07, 21 October 2014, § 54-55, which concerned the absolute nature of a ban on former collaborator of the political police on joining public service employment; contrast Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 58, ECHR 2004 ‑ VIII; Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, § 36, 7 April 2005; and Žičkus v. Lithuania, no. 26652/02, § 31, 7 April 2009 as regards restrictions on a person ’ s opportunity to find employment in the private sector). This is especially so within the national context of ongoing consolidation of the rule of law. 414. In view of the foregoing reasons, the Court considers that there has been no breach of Article 8 of the Convention in respect of the applicant ’ s dismissal from office. ALLEGED VIOLATION OF article 13 of THE CONVENTION 415. Lastly, the applicant complained that she had not had an effective remedy, as required by Article 13 of the Convention, in respect of her complaint under Article 8. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 416. The Court notes that, in the present case, the applicant lodged an appeal against the IQC ’ s decision ordering her dismissal from judicial office. The Appeal Chamber, which had full jurisdiction over questions of fact and law, examined the merits of her appeal, including the alleged unfairness of her dismissal from office. That the Appeal Chamber dismissed her appeal is not sufficient for the Court to hold that it was not an effective remedy (see, amongst other authorities, Amann v. Switzerland [GC], no. 27798/95, § 89, 16 February 2000). 417. In these circumstances, the Court considers that this complaint should be dismissed as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention. | The Court held that there had been no violation of Article 6 § 1 of the Convention as regards the alleged lack of independence and impartiality of the vetting bodies. In particular, the Court considered that, having regard to the sufficiently clear legal basis (that is to say the Constitution and the Vetting Act) which provided for the setting up of the Independent Qualification Commission and the Appeal Chamber, their exclusive jurisdiction and competence to carry out the transitional re-evaluation of judges, prosecutors, legal advisors and assistants as well as their formation in the applicant’s case, the vetting bodies had been set up and composed in a legitimate way and had been thus “tribunal[s] established by law”. The Court further noted that, once appointed, the vetting bodies had not been subject to any pressure by the executive during the examination of the applicant’s case. That their members had not been drawn from the corps of serving professional judges had been consistent with the spirit and goal of the vetting process, specifically in an attempt to avoid any individual conflicts of interest and to ensure public confidence in the process. The fixed duration of their terms of office was understandable given the extraordinary nature of the vetting process. The Court was also satisfied that the domestic legislation had provided guarantees for their irremovability and for their proper functioning. |
739 | Noise pollution | II. RELEVANT DOMESTIC LAW A. Constitution of Ukraine of 28 June 1996 36. Relevant provisions of the Constitution read as follows: Article 16 “To ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe — a catastrophe of global scale, and to preserve the gene pool of the Ukrainian people, is the duty of the State.” Article 50 “Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right ...” B. Clean Air Act ( Law of Ukraine no. 2707-XII “On the Protection of the Air” ) of 16 October 1992 37. The relevant provisions of the above law as worded at the material time read as follows: Article 12. Restriction, suspension or discontinuation of emissions of pollutants into the air and [ of levels of pollution] by physical and biological factors “ Carrying out a business or other type of activity connected to a breach of conditions and requirements concerning the emission of pollutants into the air and levels of [pollution] by physical and biological factors envisaged by permits may be restricted, suspended or discontinued according to the law. ” Article 13. Regulation of levels of [pollution of the] air by physical and biological factors “ ... Local bodies of executive power, bodies of local self-governance, enterprises, establishments, organisations and citizens [involved in] entrepreneurial activity shall be obliged to take necessary measures to prevent and preclude [an increase in] established levels of air [pollution] by physical and biological factors and [its effects on] human health. ” Article 17. Measures concerning the prevention and mitigation of air pollution [caused] by emissions from methods of transport and by [associated] physical factors and facilities “ In order to prevent and mitigate air pollution by methods of transport and by physical factors and facilities connected to them, there shall be: Developed and implemented a system of measures concerning reductions in emissions, detoxification of pollutants and mitigation of physical impacts in the course of the development, production, exploitation and repair of methods of transport and in [associated] facilities; A shift of methods of transport and [associated] facilities to less toxic types of fuel; Rational planning and development of populated communities in conformity with the distances to main roads set out by law or regulation; The movement of transport enterprises, cargo transit, and automobile transport [so that they take place] outside of densely populated residential areas; Restrictions on the entrance of automotive traffic and other methods of transport and on [associated] facilities in areas zoned for residential, resort, health, recreational and nature -reserve uses, and in places of mass recreation and tourism; Improvement in the state of maintenance of main roads and street surfaces; Implementation of automated systems of traffic regulation in the cities; Improvement in technologies for the transportation and storage of fuel at petrol refineries and petrol stations; Implementation of and improvement in monitoring activities, regulatory facilities, diagnostics facilities and comprehensive systems of control over compliance with environmental safety laws and regulations governing methods of transport and [associated] facilities; A prohibition on the development, production and exploitation of methods of transport and [associated] facilities or physical factors [giving rise to] a level of pollutants in exhaust fumes which exceeds [applicable] standards. ” Article 21. Preclusion and decrease of noise “ In order to preclude and decrease [excessive] levels of production and other noise and [in order to] achieve safe [levels of noise], there shall be: ... Improvement in the design of methods of transport and [associated] facilities, and in the conditions for their exploitation, as well as due maintenance of train and tram tracks, roads, [and] street surfaces; The situation, during the planning and development of populated communities, of enterprises, transport thoroughfares, aerodromes and other objects containing sources of noise in accordance with sanitary requirements and construction guidelines established by law and [in accordance with] noise maps; ... Administrative measures concerning the preclusion and decrease of ... noise, including the implementation of regulations and schedules [governing] transport and vehicle movement, and [the operation of associated] facilities, within the boundaries of populated communities. ... ” C. The State Committee for Construction, Architecture and Housing Policy of Ukraine, State Construction Guidelines of Ukraine DBN B.2.3 – 4 – 2000 of 2000 38. The relevant paragraph of the Guidelines as worded at the material time reads as follows: “ In the course of developing new or reconstructing existing motorways of national importance, their routes shall be channelled, as a rule, [so as to] bypass existing populated communities. ” III. RELEVANT INTERNATIONAL MATERIALS 39. The Aarhus Convention (“Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters”, ECE/CEP/43) was adopted on 25 June 1998 by the United Nations Economic Commission for Europe and came into force on 30 October 2001. Ukraine ratified the Convention on 6 July 1999. The Aarhus Convention may be broken down into the following areas: - Developing public access to information held by the public authorities, in particular by providing for transparent and accessible dissemination of basic information. - Promoting public participation in decision-making concerning issues with an environmental impact. In particular, provision is made for encouraging public participation from the beginning of the procedure for a proposed development, “when all options are open and effective public participation can take place”. Due account is to be taken of the outcome of the public participation in reaching the final decision, which must also be made public. - Extending conditions for access to the courts in connection with environmental legislation and access to information. 40. On 27 June 2003 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1614 (2003) on environment and human rights. The relevant part of this recommendation states: “9. The Assembly recommends that the Governments of member States: THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 41. The applicant complained that by routing the M04 motorway via her street, which had been unequipped for such a purpose, and by failing to organise the road ’ s proper environmental monitoring and management, the Krasnodon municipal authorities had breached her right to enjoyment of her home and her private and family life. She referred in this respect to Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 42. The Government submitted that they were confused as to the applicant ’ s identity : namely, whether Mrs Klara Grishchenko or Mrs Natalya Grimkovskaya should be considered the applicant in the present case. 43. The Government further contended that, assuming that the application had been lodged by Natalya Grimkovskaya, it should be dismissed as incompatible ratione personae with the provisions of the Convention. Namely, they contended that Natalya Grimkovskaya could not be considered a victim of a violation of Article 8, as she had not been a party to the relevant domestic civil proceedings. In the alternative, her complaint should be rejected for non-exhaustion grounds for the same reason. Finally, it was in any event lodged outside the six-month period provided for by the Convention, because the application form signed by Natalya Grimkovskaya had been undated and had only been received by the Court on 28 June 2004, while the final domestic decision in Mrs Grishchenko ’ s civil proceedings had been taken on 21 July 2003. 44. The Government further submitted that, assuming that Mrs Grishchenko was the proper applicant, the complaint should be rejected for non-exhaustion. She had lodged her civil claim against the Executive Committee, which had been an improper defendant. Mrs Grishchenko had never lodged a claim against the Highways Agency, which, according to the domestic courts ’ findings, had been responsible for maintenance of the M04 motorway. 45. The applicant disagreed. She noted that the application concerned the interests of her entire family. However, she had wished to be considered the applicant, since she was the owner of the house. In addition, it had been expressly on her behalf that Mrs Grishchenko had instituted the domestic civil proceedings claiming compensation and resettlement. The applicant further alleged that she had not been obliged to lodge a claim against the Highways Agency, as in her opinion the Executive Committee had been responsible for K. Street ’ s maintenance. Moreover, it had been the Executive Committee who had allowed through traffic on K. Street in the first place. Further, it had not organised regular monitoring of this part of the road by traffic police, or by environmental and sanitary authorities, to ensure the enforcement of anti-pollution and safety measures. The substance of her complaint under Article 8 of the Convention had therefore been duly stated before the domestic courts. 46. The Court notes that the applicant lives on K. Street and has provided considerable information concerning her personal suffering on account of the street ’ s designation as part of a motorway. Her complaint may therefore not be considered incompatible ratione personae with the provisions of the Convention. The Government ’ s objection concerning the applicant ’ s victim status must therefore be dismissed. 47. The Court further observes that the judicial authorities, and, in particular, the Lugansk Regional Court of Appeal clearly considered Mrs Grishchenko ’ s civil claim as having been lodged on the applicant ’ s behalf (see paragraph 33 above). The Government ’ s first objection concerning non-exhaustion must therefore also be dismissed. 48. As regards the Government ’ s argument that the complaint was lodged after the expiry of the six-month period, the Court notes that Mrs Grishchenko first informed the Court that she wanted to act on her daughter ’ s behalf in the Convention proceedings and submitted the respective power of attorney from the applicant on 22 December 2003. This date falls within the six-month period following the taking of the final decision in the civil proceedings ending on 21 July 2003. The Court considers that, in these circumstances, the fact that the initial application form (executed on 20 and posted on 21 October 2003) was signed by Mrs Grishchenko and that subsequently the applicant herself signed a new application form raising the same complaints, which was received by the Court on 28 June 2004, cannot be construed against her. The Court therefore dismisses the Government ’ s objection concerning the six-month period. 49. Finally, as regards the Government ’ s second objection concerning non-exhaustion, namely, that a civil claim should have been lodged against the Highways Agency, in light of the materials in the case file (see paragraphs 21, 24-26 and 30 above) the Court considers that the applicant ’ s arguments concerning the Executive Committee ’ s responsibility for the maintenance of K. Street were not without some basis. It is more important, however, that the object of the applicant ’ s claim before the Court concerns, primarily, not repairs to K. Street, but rather the compatibility with the Convention of : ( i ) the municipality ’ s consent to designate that street as a part of a motorway; and (ii) its alleged omissions in putting in place a sound environmental management policy to ensure that the operation of the motorway complied with applicable law. The Government have not shown how these issues could be resolved in proceedings against the Highways Agency. This objection must therefore also be dismissed. 50. Overall, the Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties (a) The applicant 51. The applicant submitted that the decision taken in 1998 to designate K. Street as part of a motorway had been unlawful and arbitrary, as national transit roads should be constructed outside of populated communities. Given that as of October 1998, when the authorities had been carrying out the motorway stocktaking project, there had been no proper transit road in place, they should have routed the M04 motorway via P. Street, which had previously served as a portion of the Chisinau -Volgograd motorway. The decision to re-route traffic via a six- metre- wide residential street with private houses situated four to five metres from the road had been arbitrary. 52. Furthermore, having taken this decision, the municipal authorities had never taken measures to ensure regular monitoring of the street by the traffic police, as well as its environmental management to curtail pollution resulting from the heavy lorry traffic. Pollution and other nuisances had remained unchecked for several years in a row, and it had only been following multiple complaints from the street ’ s residents that in May 2002 the level of pollution had been checked and the decision to suspend the traffic had been taken. Moreover, the street ’ s residents had had to engage in mass protests in order to have this decision eventually enforced. In any event, although the traffic had been stopped, no measures to repair the deteriorated road surface or clean up the soil had ever been implemented. 53. As a result, the applicant ’ s house had been damaged and her family members had suffered irreparable damage to their health. They should have obtained compensation from the Executive Committee for their grievances. However, the domestic courts had arbitrarily dismissed her claim concerning the matter, having refused to properly consider her main arguments. (b) The Government 54. The Government objected to this view. 55. They alleged, firstly, that there had been insufficient evidence that the applicant ’ s suffering had reached the threshold necessary for bringing Article 8 of the Convention into play. The damage to the house from vibration had been confirmed by a group of assessors who had not been qualified to come to such conclusions. On the other hand, a qualified representative of the Housing Maintenance department had opined during the court hearings that the house had more likely been flawed upon its initial construction. There had likewise been no conclusive evidence concerning a correlation between the motorway ’ s operation and the health problems suffered by the members of the applicant ’ s family. The Government also contested, without providing evidence, the accuracy of the medical certificates issued by the City Hospital, alleging that they were prepared by the applicant ’ s sister. Moreover, there had been other sources of pollution in the area, such as burning spoil heaps from coal-mining activity. Overall, a considerable part of Ukraine suffers from various environmental problems and there is no indication that the environmental burden suffered by the applicant ’ s family had been any heavier than that borne by the rest of the community. 56. The Government further contended that, even assuming that they had owed any duty vis-à-vis the applicant under Article 8 of the Convention, they had taken all reasonable actions to ensure a fair balance between her interests and those of the community. Firstly, K. Street had served as a through road since 1983. In 1998 the street ’ s status as part of the motorway had merely been confirmed during the stocktaking project. The Government should therefore not be held responsible for the decision to route the traffic via K. Street. Secondly, following the entry of the Convention into force, the authorities had been contemplating the construction of a new through road, bypassing residential streets. However, they had had no choice but to use the existing road until the necessary funding could be found, as closing it off would have caused considerable detriment to the economic well-being of the country. Contrary to the applicant ’ s argument, the use of the road had not been at odds with applicable law, because paragraph 1.9 of the State Construction Guidelines had recommended, but had not required, that major motorways be constructed outside populated communities. 57. The Government next argued that the pollution complained of had not been emitted by the State authorities ’ operation of the road, but rather by vehicles belonging to various owners. This pollution therefore could not qualify as State interference with the applicant ’ s Article 8 rights. Assuming the State had had a positive obligation to react to this pollution, it had done so by setting up a legislative scheme establishing safe pollution levels and a system to monitor compliance with that scheme. Once the State authorities had become aware that the road was not operating as intended, they had reacted quickly by closing it off to through traffic on 16 June 2002, more than a year before the applicant had applied to the Court. 2. The Court ’ s assessment 58. Referring to its well-established case-law (see, among other authorities, López Ostra v. Spain, 9 December 1994, Series A no. 303 ‑ C; Dubetska and Others v. Ukraine, no. 30499/03, § § 105-108, 10 February 2011 ) the Court reiterates that, where, as in the present case, the case concerns an environmental hazard, an arguable claim under Article 8 may arise only where the hazard at issue attains a level of severity resulting in significant impairment of the applicant ’ s ability to enjoy her home, private or family life. The assessment of that minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual ’ s health or quality of life. 59. In line with these principles, the Court must first consider whether the detriment suffered by the applicant on account of the operation of the M04 motorway starting from October 1998 was sufficiently serious to raise an issue under Article 8 of the Convention. The Court observes that the applicant ’ s complaints concern, primarily, the level of noise, damage to her house from vibration and her sufferings on account of the deterioration of her parents ’ and her minor son ’ s health resulting from air and soil pollution. 60. The Court considers that there is insufficient evidence to prove all the applicant ’ s allegations ‘ beyond reasonable doubt ’. In particular, the noise levels and their impact on the applicant ’ s private and family life have never been measured (see a contrario Deés v. Hungary, no. 2345/06, § 23, 9 November 2010 ). The allegation that the damage to the house had been caused by vibration was disputed by the Government with reference to a competent authority ’ s opinion and has never been confirmed by an independent expert. Insofar as the applicant ’ s parents ’ health can fall within the scope of her family life under Article 8, the case file contains medical evidence that they suffer from numerous illnesses. However, based on this evidence, it is not possible to determine to what extent these illnesses have been caused or aggravated by the operation of the motorway. As regards the health of the applicant ’ s minor son, it appears that he already suffered from immunodeficiency before October 1998 and that in his doctors ’ opinion he had resided in an ‘ environmentally saturated area ’ from his birth in 1994 (see paragraph 17 above). 61. At the same time, the Court notes that according to the official investigation of 15 May 2002 ( see paragraph 12 above ), the surface of the road near the applicant ’ s house was severely damaged and more than one hundred vehicles drove over it during one hour. It is not implausible in these circumstances that the applicant was regularly disturbed by noise and vibration, at least to some extent. Further, more than half of the examined vehicles were found to be emitting pollutants in excess of applicable safety standards. The level of air and soil pollution was assessed by the domestic environmental health authorities as necessitating the suspension of the use of the road, on pain of risk of adverse impact on the residents ’ health ( see paragraph 19 above). The polluting substances emitted by the vehicles included copper and lead, an excessive level of which was also found in the soil near the applicant ’ s house. In light of these findings, the Court considers it particularly notable that the applicant ’ s son was diagnosed in 2002 with chronic lead and copper salts poisoning. The Court notes that the Government have not provided any evidence disproving the authenticity and accuracy of this diagnosis and have not proposed any plausible alternative explanation concerning the origin of this poisoning to counter the applicant ’ s allegation that it was directly connected to the motorway ’ s operation. 62. Regard being had to the above data, the Court considers that the cumulative effect of noise, vibration and air and soil pollution generated by the M04 motorway significantly deterred the applicant from enjoying her rights guaranteed by Article 8 of the Convention. Article 8 is therefore applicable in the present case. 63. In view of the above, the Court will next examine, in the light of the principles developed in its jurisprudence (see, among other authorities, Dubetska, cited above, §§ 140- 145) whether the Government have provided sufficient evidence to justify a situation in which the applicant bore a heavy burden on behalf of the rest of the community. 64. The Court firstly notes that, as submitted by the Government, on 16 June 2002, within one month of the investigation by the environmental health authorities, K. Street was closed off to through traffic. Lacking concrete data, and, in particular, texts of relevant domestic decisions (if any) in evidence of the applicant ’ s allegations that this decision was in fact enforced at an unspecified later date or that the traffic was eventually restarted, the Court will proceed from the assumption that through traffic was stopped on the date suggested by the Government (see, mutatis mutandis, Vinokurov v. Russia and Ukraine ( dec .), no. 2937/04, 16 October 2007). Consequently, it must be noted that the issues of noise, vibration, air and soil pollution connected to its functioning were redressed. It, however, remains to be examined whether the State authorities should still be liable for the adverse effects of the motorway ’ s operation between October 1998 and June 2002. 65. In assessing this matter, the Court recognises the complexity of the State ’ s tasks in handling infrastructural issues, such as the present one, where measures requiring considerable time and resources may be necessary. Being mindful of its subsidiary role under the Convention, on many occasions the Court has emphasized that the States should enjoy a considerable margin of appreciation in the complex sphere of environmental policymaking ( see, for example, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 100, ECHR 2003 ‑ VIII ). While the authorities of the Member States are increasingly taking on responsibility for minimising or controlling pollution, Article 8 cannot be construed as requiring them to ensure that every individual enjoys housing that meets particular environmental standards (see Ward v. the United Kingdom ( dec .), no. 31888/03, 9 November 2004). In line with these considerations, the Court considers that it would be going too far to render the Government responsible for the very fact of allowing cross-town through traffic to pass through a populated street or establish the applicant ’ s general right to free, new housing at the State ’ s expense. All the more so, given that the applicant in the present case has not argued that her house has decreased in value since October 1998 or that she has otherwise been unable to sell it and relocate without the State ’ s support (see, a contrario, Fadeyeva v. Russia, no. 55723/00, § 121, ECHR 2005 ‑ IV ). 66. While the Court finds no reason to reassess the substance of the Government ’ s decision to allow the use of K. Street as a through road, in examining the procedural aspect of relevant policymaking, the Court is not convinced that minimal safeguards to ensure a fair balance between the applicant ’ s and the community ’ s interests were put in place. 67. It notes, firstly, that the Government have not shown that the 1998 decision to route motorway M04 via K. Street was preceded by an adequate feasibility study, assessing the probability of compliance with applicable environmental standards and enabling interested parties, including K. Street ’ s residents, to contribute their views ( see, a contrario, Hatton, cited above, § 128 ). On the contrary, the nature of this decision and the adequacy of attenuating procedures appear quite ambiguous, particularly in light of the Government ’ s disagreement with the applicant as to whether the 1998 decision re-routed the traffic from P. Street to K. Street or merely confirmed K. Street ’ s earlier status as a through road. The Court considers, however, that even if K. Street had been used by through traffic before the 1998 stocktaking project, the State authorities were responsible for ensuring minimal procedural safeguards in this project ’ s course. Neither the domestic court decisions, nor the Government ’ s observations contain evidence that these safeguards, and particularly public access to relevant environmental information and decision-taking in the period of contemplating the stocktaking project, existed. 68. Secondly, the Court considers that no later than the time of the 1998 stocktaking project, the authorities likewise became responsible for putting in place a reasonable policy for mitigating the motorway ’ s harmful effects on the Article 8 rights of K. Street ’ s residents (see, mutatis mutandis, Fadeyeva, cited above, §§ 127-131 ). It appears that the municipal authorities did take some measures aimed at the street ’ s environmental management ( see paragraph 30 above). However, neither the assessment made by domestic courts in their judgments, nor the Government ’ s observations contain sufficient detail enabling the Court to conclude that this management was effective and meaningful before the measurement of critical pollution levels on 15 May 2002. As transpires from the available materials, this measurement session was carried out only in response to repeated complaints by K. Street ’ s residents, which, according to the case file, were initially lodged no later than in 2000. 69. Thirdly, emphasising the importance of public participation in environmental decision-making as a procedural safeguard for ensuring rights protected by Article 8 of the Convention, the Court underlines that an essential element of this safeguard is an individual ’ s ability to challenge an official act or omission affecting her rights in this sphere before an independent authority (see Dubetska, cited above, § 143 ). It also notes that as of 30 October 2001 the Aarhus Convention, which concerns access to information, participation of the public in decision-making and access to justice in environmental matters has entered into force in respect of Ukraine (see paragraph 39 above). In the meantime, it has not been shown in the present case that the applicant was afforded a meaningful opportunity to contest the State authorities ’ policymaking regarding the M04 motorway during the period of October 1998 – June 2002 before the domestic courts. 70. The Court notes that the applicant formally attempted to do so by lodging through Mrs Grishchenko a civil claim against the Executive Committee. As appears from the brief reasoning adduced by the Lugansk Regional Court of Appeal for dismissing her claim ( see paragraph 33 above), its analysis was mostly limited to concluding that the defendant was not at all responsible for K. Street ’ s maintenance and repair. The Court notes that a variety of documents in the case file appear to pinpoint that such responsibility did – at least to some extent – in fact exist ( see paragraphs 24 ‑ 26, 30 and 34 above ), while the court ’ s reasoning does not contain any reference to the evidence which served as a basis for its contrary conclusion. 71. Regardless, however, of which authority was responsible for the maintenance of K. Street ’ s road surface and other amenities, the Court finds it more important that the courts ’ reasoning does not contain a direct response to the applicant ’ s main arguments, on the basis of which she had sought to establish the Executive Committee ’ s liability. In particular, while the first-instance court questioned some witnesses as to some points of the municipality ’ s environmental policy, neither its, nor the higher courts ’ judgments contain any express assessment as to why they considered that this policy adequately protected the applicant ’ s rights. Likewise, no reasoning was provided for dismissing an allegation that the defendant ’ s decision taken in October 1998 was in and of itself unlawful and arbitrary, and it is unclear from the case file whether this aspect of the applicant ’ s complaint was at all studied during the proceedings at issue. The Court considers that the applicant ’ s arguments concerning the unlawfulness and arbitrariness of the above decision and the adequacy of the municipality ’ s environmental policy concerning K. Street were of paramount importance for resolving whether or not the defendant ’ s conduct struck a fair balance between the applicant ’ s rights guaranteed by Article 8 and the interests of the community. Lacking reasoning for the dismissal of these arguments in the texts of the domestic judgments, the Court is unable to conclude that the applicant had a meaningful opportunity to adduce her viewpoints before an independent authority. 72. Overall, the Court attaches importance to the following factors. First, the Government ’ s failure to show that the decision to designate K. Street as part of the M04 motorway was preceded by an adequate environmental feasibility study and followed by the enactment of a reasonable environmental management policy. Second, the Government did not show that the applicant had a meaningful opportunity to contribute to the related decision-making processes, including by challenging the municipal policies before an independent authority. Bearing those two factors and the Aarhus Convention (see paragraph 39) in mind, the Court cannot conclude that a fair balance was struck in the present case. 73. There has therefore been a breach of Article 8 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 74. The applicant additionally complained under Articles 6 § 1 and 13 of the Convention that the civil proceedings in her case had been unfair. In particular, she complained that the courts had not stated sufficient reasons for dismissing her claims. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention only (see Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 20 00 ‑ XI). This provision, insofar as relevant, reads as follows: “... In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...” 75. The Government contested this allegation. 76. The Court notes that this complaint is linked to the applicant ’ s complaint under Article 8 and must therefore likewise be declared admissible. 77. It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of claims lodged under these provisions, in the instant case, regard being had to the Court ’ s findings under Article 8 (see paragraphs 69-71 above) concerning the lack of reasoning in the domestic court judgments, the Court considers that it is not necessary to also examine the same facts under Article 6 (see, mutatis mutandis, Hunt v. Ukraine, no. 31111/04, § 66, 7 December 2006 ). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 78. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 79. The applicant claimed 10,000 euros (EUR) in just satisfaction for damage allegedly caused to her current house and EUR 20,000 for buying a new house. She further claimed EUR 100,000 in compensation for health damage and mental distress. 80. The Government submitted that these claims were unsubstantiated. 81. Regard being had to the reasons for which the Court has found a violation of Article 8 of the Convention in the present case, it considers that the applicant must have suffered non-pecuniary damage which cannot be redressed by the mere finding of the violation. Ruling on an equitable basis, it awards the applicant EUR 10,000 in respect of non-pecuniary damage and dismisses the remainder of her claim as unsubstantiated. B. Costs and expenses 82. The applicant also claimed EUR 500 for costs and expenses incurred before the domestic courts. She did not provide any supporting documents. 83. The Government alleged that this claim was unsubstantiated. 84. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, lacking any supporting documents, as well as giving no explanation as to the nature of the expenses comprising the amount claimed, the Court makes no award. C. Default interest 85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention. Having noted that handling infrastructural issues was a difficult task requiring considerable time and resources from States and that Governments could not be held responsible for merely allowing heavy traffic to pass through populated residential town areas, it observed in particular that the Ukrainian Government had not carried out an environmental feasibility study before turning the street in question into a motorway, nor had they made sufficient efforts to mitigate the motorway’s harmful effects. In addition, the applicant had not had any meaningful opportunity to challenge in court the State’s policy concerning that motorway, as her civil claim had been dismissed with scant reasoning, the courts not having engaged with her arguments. |
236 | The definition of idem | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The 1968 Criminal Code 18. Article 129 § 1 of the 1968 Criminal Code makes it an offence to inflict “ intermediate ” bodily harm on another. Article 129 § 2 defines “ intermediate ” bodily harm as, among other things, the knocking out of teeth whose loss makes chewing or speaking more difficult. 19. By Article 170 § 1 of the Code, it is an offence to enter another person ’ s home using force, threats, dexterity, abuse of power, or special technical devices. Article 170 § 2 provides that the offence is aggravated if it has been committed at night or by an armed individual. B. The 1974 Code of Criminal Procedure 1. Court ‑ appointed counsel 20. Points (1) to (6) of Article 70 § 1 of the 1974 Code of Criminal Procedure listed situations in which the appointment of counsel for the accused was mandatory : ( i ) the accused was a minor; (ii) the accused suffered from a disability preventing him or her from defending himself or herself in person; (iii) the accused was charged with an offence punishable by more than ten years ’ imprisonment; (iv) the accused did not speak Bulgarian; (v) another accused who had diverging interests had already retained counsel; or (vi) the case was heard in the absence of the accused. On 1 January 2000 a new point ( 7 ) was added. It was part of a comprehensive overhaul of the Code intended to bring it in line with the Convention, based on Article 6 § 3 (c), and it provided that the appointment of counsel was compulsory if the accused could not afford it but wished to be legally represented and the interests of justice so required. 21. On 29 April 2006 the 1974 Code was superseded by the 2005 Code of Criminal Procedure. The text of its Article 94 § 1 (9) matches exactly that of Article 70 § 1 (7) of the 1974 Code. Article 94 § 1 (7) provides that the participation of counsel in the proceedings before the Supreme Court of Cassation is compulsory. Where the participation of counsel is compulsory, the competent authority has to appoint counsel when not retained by the accused (Article 94 §§ 2 and 3). 2. Adjournment of a hearing in the event of counsel ’ s failure to appear 22. Article 269 § 2 (3) of the 1974 Code provided that a hearing had to be adjourned if counsel for the accused failed to appear and if such counsel could not be replaced without causing prejudice to the accused ’ s defence. 23. In 1997 the text was amended, providing that an adjournment was only necessary where the case could not proceed without the accused being legally represented. In a decision of 14 April 1998 ( решение № 9 от 14 април 1998 г. по к. д. № 6 от 1998 г. обн ., ДВ, бр. 45 от 21 април 1998 г. ) the Constitutional Court declared the amendment unconstitutional, finding that it made it possible to hold hearings in which the accused would not be legally represented and that this would certainly prejudice the defence. It was true that certain limitations on the rights of the defence were permissible under the Constitution in the interest of the proper administration of justice. However, this particular limitation was disproportionate, because it made it harder to ascertain the truth and put the accused at a disadvantage vis-à-vis the prosecution, in breach of the principle of equality of arms. 3. Bars to the institution of criminal proceedings 24. Article 21 § 1 (6) of the 1974 Code (whose text has been copied almost verbatim into Article 24 § 1 (6) of the 2005 Code) provided that criminal proceedings could not be opened or had to be discontinued if in respect of the same person and in respect of the same offence there existed a final judgment or decision. The former Supreme Court – in a binding interpretative decision –, and later the Supreme Court of Cassation, have construed this provision as not barring the opening of criminal proceedings in respect of persons who have already been punished in administrative proceedings ( тълк. реш. № 85 от 1 ноември 1966 г. по н. д. № 79/ 19 60 г., ОСНК на ВС; реш. № 348 от 29 май 1998 г. по н. д. № 180/ 19 98 г., ВКС, II н. о.; и реш. № 564 от 9 декември 2008 г. по н. д. № 626/2008 г., ВКС, I н. о. ). C. By ‑ law no. 3 for safeguarding public order on the territory of the municipality of Gabrovo 25. By ‑ law no. 3 for safeguarding public order on the territory of the municipality of Gabrovo ( Наредба № 3 за опазване на обществения ред на територията на габровската община, приета с решение № 50, протокол № 10 от 26 март 1992 г. ) was adopted by the Gabrovo Municipal Council on 26 March 1992 pursuant to section 22 (1) of the 1991 Local Self ‑ Government and Local Administration Act, which, as worded at the material time, empowered municipal councils to make by ‑ laws concerning local issues. Section 2(1) of the by ‑ law provided that citizens were prohibited from committing acts which breached public order and expressed manifest disregard towards society. Section 27(1) provided that violations of the by-law were punishable with a fine of up to BGN 50. Under section 30 of the by ‑ law, the procedure for establishing such violations and their punishment was governed by the 1969 Administrative Offences and Penalties Act. D. The 1969 Administrative Offences and Penalties Act 26. Section 2(3) of the 1969 Administrative Offences and Penalties Act provides that municipal councils may, in issuing by ‑ laws, determine the elements of administrative offences and provide for penalties among those envisaged by the Local Self ‑ Government and Local Administration Act of 1991. Under section 22(2) of that Act, as in force at the material time, the breach of a municipal by-law was punishable with a fine of up to 500 Bulgarian levs. 27. The 1969 Act governs administrative offences and penalties and lays down the procedure for punishing such offences. It defines them, in section 6, as acts or omissions which run counter to the established order, have been committed wilfully and are punishable with administrative penalties. Section 11 provides that, absent specific provisions in the Act, the 1968 Criminal Code governs all questions concerning mens rea, capacity, exculpating circumstances, complicity, preparation and attempts. 28. Under section 58(1), a decision imposing an administrative penalty must be served on the offender. If, however, the offender cannot be found at the address he specified and his new address is unknown, a note to this effect is made on the decision and it is considered as served on the date of the note (section 58(2)). The decision may be challenged by way of judicial review (section 59(1)) within seven days after it has been served (section 59(2)). Under section 64, decisions imposing administrative penalties become final when ( i ) they are not subject to review, (ii) have not been challenged within the statutory time ‑ limit, or (iii) have been challenged but have been upheld or varied by the competent court. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 29. The applicant raised several complaints under Article 6 of the Convention in relation to the criminal proceedings against him. He firstly alleged that the Gabrovo Regional Court had appointed counsel for him with such short notice before the hearing that she had been unable to defend him effectively. He secondly complained that the Supreme Court of Cassation had refused to appoint counsel for him. Lastly, he alleged that the courts which had examined his case had erred in assessing the evidence and in establishing the facts. 30. The Court considers that these complaints fall to be examined under Article 6 of the Convention, which, in as far as relevant, provides : “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require [.]” 31. The Government did not submit observations, but stated that the application was inadmissible and manifestly ill ‑ founded. 32. The applicant submitted that the Supreme Court of Cassation ’ s refusal to appoint counsel for him had amounted to a breach of Article 6 § 3 (c) of the Convention and Article 70 of the 1974 Code of Criminal Procedure. This was further shown by the fact that under Article 94 of the 2005 Code of Criminal Procedure the participation of counsel was compulsory for cases heard by the Supreme Court of Cassation. A. Admissibility 33. The Court considers that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The late appointment of counsel in the proceedings before the Gabrovo Regional Court 34. It is clear that the Gabrovo Regional Court had appointed counsel for the applicant in good time before the hearing, and that the failure of that counsel to appear made it necessary to appoint a new one on the day of the hearing (see paragraph 12 above). The point in issue is whether and to what extent this situation impacted negatively on the fairness of the proceedings against the applicant, because the rights of those charged with a criminal offence to adequate time and facilities for the preparation of their defence and to effective legal assistance are elements, among others, of the concept of a fair trial (see Goddi v. Italy, 9 April 1984, § 28, Series A no. 76; Twalib v. Greece, 9 June 1998, § 46, Reports of Judgments and Decisions 1998 ‑ IV; Mattick v. Germany ( dec. ), no. 62116/00, ECHR 2005 ‑ VII; and Padalov v. Bulgaria, no. 54784/00, § 41, 10 August 2006 ). 35. However, the Court does not consider it necessary to pursue that point. It observes that the applicant explicitly stated that the new counsel was acquainted with the case and his arguments and that he agreed to be defended by her. It also notes that neither the applicant nor his counsel sought an adjournment in order for the counsel to be able to prepare more thoroughly for the hearing (see paragraph 12 above). The Court must therefore determine, in the first place, whether the applicant waived the rights described in the preceding paragraph. 36. Neither the letter nor the spirit of Article 6 prevent a person from waiving the guarantees of a fair trial, but such waiver must be established in an unequivocal manner, be attended by minimum safeguards commensurate with its importance, and not run counter to any important public interest (see Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006 ‑ XII ). The Court finds no reason of public policy to prevent accused persons from waiving their right to additional time for the preparation of their defence. This is because the question of time depends primarily on the assessment of the persons concerned; different counsel need different amounts of time to prepare for a case. In the instant case, instead of seeking an adjournment, as possible (see paragraphs 22 and 23 above), the applicant explicitly stated that his new counsel was familiar with his case and that he agreed to be defended by her (see paragraph 12 above). There is no indication that this declaration was tainted by constraint. Thus, it was the applicant ’ s choice to proceed with the case, and the Gabrovo Regional Court cannot be criticised for not giving his counsel more time to prepare. While the authorities responsible for appointing counsel have to ensure that they are capable of effectively defending the accused (see Mills v. the United Kingdom ( dec. ), no. 35685/97, 5 December 2000 ), national judges must also strike a balance between the need to ensure that the accused have enough time to prepare and the need to ensure that a trial progresses in a reasonably expeditious way (see Naviede v. the United Kingdom ( dec. ), no. 38072/97, 7 September 1999 ). In this connection, it cannot be overlooked that in her closing speech the applicant ’ s counsel was able to raise a number of arguments in his defence (see paragraph 13 above), which serves to confirm the applicant ’ s statement that she was familiar with his case. 37. There has therefore been no violation of Article 6 §§ 1 and 3 (b) and (c) of the Convention. 2. The Supreme Court of Cassation ’ s refusal to appoint counsel for the applicant 38. The right of those charged with criminal offences to free legal assistance is also an element, among others, of the concept of a fair trial in criminal proceedings. It is subject to two conditions : the persons concerned must lack sufficient means to pay for legal assistance, and the interests of justice must require that they be granted such assistance (see, among other authorities, Pham Hoang v. France, 25 September 1992, § 39, Series A no. 243 ). 39. The Court notes the difficulties in assessing at this stage whether the applicant lacked sufficient means to pay for legal assistance in connection with his representation before the Supreme Court of Cassation. There are, however, indications which suggest that this was so. First, counsel had been appointed for him in the proceedings before the lower court (see paragraph 12 above), in all probability under the new point 7 of Article 70 § 1 of the 1974 Code of Criminal Procedure, because at that juncture, in the absence of an appeal by his co ‑ accused (see paragraph 11 above), none of the other hypotheses where counsel was mandatory were present (see paragraph 20 above). Second, the applicant expressly asserted that he could not afford to retain counsel (see paragraph 15 above), whereas in rejecting his request the Supreme Court of Cassation did not address this assertion, confining its reasoning to the general statement that the prerequisites of the above ‑ mentioned Article 70 were not met (see paragraph 16 above and contrast Caresana v. the United Kingdom ( dec. ), no. 31541/96, 29 August 2000 ). In the light of these facts and in view of the absence of clear indications to the contrary, the Court is satisfied that the applicant lacked sufficient means to pay for his legal representation in the cassation proceedings (see, mutatis mutandis, Twalib, cited above, § 51). 40. As to whether the interests of justice required that the applicant receive free legal assistance, the Court observes that in the lower courts he was found guilty and sentenced to eighteen months imprisonment (see paragraphs 10 and 14 above). Given that where deprivation of liberty is at stake, those interests in principle call for such assistance (see Benham v. the United Kingdom, 10 June 1996, § 61, Reports 1996 ‑ III, and, more recently, Shabelnik v. Ukraine, no. 16404/03, § 58, 19 February 2009 ), there can be little doubt that they required that it be granted to the applicant for the purposes of his appeal on points of law. An additional factor was the complexity of the cassation procedure ( see Pham Hoang, § 40 in fine, and Twalib, § 53, both cited above ); indeed, at present Article 94 § 1 (7) of the 2005 Code of Criminal Procedure requires the participation of counsel in the proceedings before the Supreme Court of Cassation in all cases (see paragraph 21 above). Lastly, it cannot be overlooked that a qualified lawyer would have been able to clarify the grounds adduced by the applicant in his appeal and effectively counter the pleadings of the public prosecutor at the hearing (see Artico v. Italy, 13 May 1980, § 34 in fine, Series A no. 37, and Pakelli v. Germany, 25 April 1983, § § 37 ‑ 39, Series A no. 64 ), thus ensuring respect for the principle of equality of arms. 41. In view of the foregoing, the Court concludes that there has been a violation of Article 6 § § 1 and 3 (c) of the Convention. 3. The manner in which the courts assessed the evidence and established the facts 42. The Court observes that it is not its function to deal with errors of fact or law allegedly committed by the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I), as it is not a court of appeal from these courts (see, among many other authorities, Cornelis v. the Netherlands ( dec. ), no. 994/03, ECHR 2004 ‑ V (extracts)). However, in view of its conclusion in paragraph 41 above, it finds it unnecessary to examine this complaint (see Seliverstov v. Russia, no. 19692/02, § 25, 25 September 2008 ). II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 43. The applicant complained that he had been tried and convicted for the offence for which he had already been fined by the mayor. He relied on Article 4 of Protocol No. 7 to the Convention, which, in so far as relevant, provides: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. ...” 44. The Government did not submit observations, but stated that the application was inadmissible and manifestly ill ‑ founded. 45. The applicant said that he was convinced that he had been punished twice in respect of the same conduct, but left it to the Court to determine whether this amounted to a breach of the above provision. A. Admissibility 46. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Whether the first sanction was criminal in nature 47. On 19 November 1999 the applicant was fined in proceedings conducted under the 1969 Administrative Offences and Penalties Act and regarded as “administrative” rather than “criminal” under the domestic legal classification (see paragraphs 7 and 27 above). It must therefore be determined whether these proceedings concerned a “ criminal ” matter within the meaning of Article 4 of Protocol No. 7. The relevant principles for making this determination have recently been summarised in paragraphs 52 and 53 of the Court ’ s judgment in the case of Sergey Zolotukhin v. Russia ( [GC], no. 14939/03, ECHR 2009 ‑ ...). 48. As in that case, the Court starts with the observation that the sphere labelled in some legal systems as “administrative” embraces certain offences which have a criminal connotation but are too trivial to be governed by criminal law and procedure ( ibid ., § 54, with further references ). 49. It further notes that the offence of a breach of public order and an expression of manifest disregard towards society in section 2(1) of by ‑ law no. 3 (see paragraphs 25 ‑ 27 above) served to guarantee the protection of human dignity and public order, being values and interests which normally fall within the sphere of protection of the criminal law. It was directed towards all individuals rather than just a group having special status, and its primary aims were punishment and deterrence, which are recognised as characteristic features of criminal penalties (see Lauko v. Slovakia, 2 September 1998, § 58, Reports 1998 ‑ VI; Kadubec v. Slovakia, 2 September 1998, § 52, Reports 1998 ‑ VI; and Sergey Zolotukhin, cited above, § 55). The fact that it was not punishable by imprisonment is not decisive (see Öztürk v. Germany, 21 February 1984, § § 53 and 54, Series A no. 73; Lauko, cited above, § 58; and Kadubec, cited above, § 52 ). The nature of the offence and the nature and degree of severity of the penalty are alternative and not cumulative criteria, it being sufficient that the offence in question is by its nature criminal from the point of view of the Convention (see Lutz v. Germany, 25 August 1987, § 55, Series A no. 123; Kadubec, cited above, § 52 in fine; and Lauko, cited above, § 56). 50. The nature of the offence for which the applicant was fined by the mayor was therefore such as to bring it within the ambit of the expression “penal procedure” used in Article 4 of Protocol No. 7. 2. Whether the offences for which the applicant was fined and then prosecuted were the same 51. The relevant test has recently been clarified in paragraphs 78 to 84 of the Court ’ s judgment in the case of Sergey Zolotukhin (cited above). Under this test, the Court must disregard the legal characterisation of the offences in domestic law and take their facts as its sole point of comparison. 52. In the present case, the facts that gave rise to the administrative fine imposed on the applicant related to a breach of public order constituted by his breaking down the door of Mr G.I. ’ s flat and beating him up (see paragraph 7 above). The same facts formed the central element of the charges under Article 129 § 1 and Article 170 § 2 of the 1968 Criminal Code, according to which the applicant had inflicted “ intermediate ” bodily harm on Mr G.I. and broken into his home (see paragraphs 8, 18 and 19 above). The criminal charges therefore embraced the facts of the administrative offence in its entirety and, conversely, the administrative offence did not contain any elements that were not present in the criminal offences with which the applicant was charged. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7. 3. Whether there was a duplication of proceedings 53. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of this provision if it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references). 54. In the instant case, the fine imposed by the mayor was subject to judicial review within seven days. However, as the applicant ’ s address was unknown, the mayor ’ s decision was constructively served on him by being put in the file, with the result that the time ‑ limit started running on 19 November 1999 and expired seven days later (see paragraphs 7 and 28 above). After its expiry this decision became final, and no further ordinary remedies were available to the applicant. The administrative “conviction” therefore became “final” for the purposes of Article 4 of Protocol No. 7 before the institution of the criminal proceedings against the applicant. 55. Since Article 4 of Protocol No. 7 applies even where an individual has merely been prosecuted in proceedings which have not resulted in a conviction (see Sergey Zolotukhin, cited above, § 110, with further references), the fact that the applicant was acquitted of the charge of entering another ’ s home by force (see paragraph 10 above) has no bearing on his claim that he was prosecuted and tried on that charge for a second time. Nor did this acquittal deprive the applicant of his victim status, as it was not based on the fact that he had been fined for the same actions under by ‑ law no. 3, but on the criminal court ’ s assessment of the evidence and its findings of fact (ibid., §§ 112 ‑ 16). Indeed, it was not open to the courts to terminate the criminal proceedings against him on account of his earlier punishment in administrative proceedings, as, according to a binding interpretative decision of the former Supreme Court and the constant case ‑ law of the Supreme Court of Cassation, the prohibition on repetition of proceedings does not apply to administrative proceedings (see paragraph 24 above and, mutatis mutandis, Sergey Zolotukhin, cited above, § 118). 4. Conclusion 56. The applicant was “ convicted ” in administrative proceedings which are to be assimilated to “ criminal proceedings ” within the autonomous Convention meaning of this term. After this “ conviction ” became final, criminal charges were laid against him which referred to the same conduct as that punished in the administrative proceedings and encompassed substantially the same facts. The criminal proceedings against the applicant thus concerned essentially the same offence as that of which he had already been “ convicted ” by a final decision of the mayor. 57. There has therefore been a violation of Article 4 of Protocol No. 7. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 58. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 59. The applicant claimed 7,000 euros (EUR) in respect of non ‑ pecuniary damage. 60. The Government did not comment on the applicant ’ s claim. 61. The Court is of the view that the applicant must be considered to have suffered some non-pecuniary damage as a result of the breach of his right to effective legal assistance and his right not to be tried or punished again for the same offence. Ruling on an equitable basis, as required under Article 41, it awards him EUR 3, 0 00, plus any tax that may be chargeable on that amount. B. Costs and expenses 62. The applicant sought the reimbursement of the expenses which he had incurred for the proceedings before the Court. He did not quantify them and did not submit any documents in support of his claim. 63. The Government did not comment on the applicant ’ s claim. 64. According to the Court ’ s case ‑ law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. To this end, Rule 60 §§ 2 and 3 of the Rules of Court stipulate that applicants must enclose with their claims for just satisfaction “any relevant supporting documents”, failing which the Court “may reject the claims in whole or in part”. In the present case, noting that the applicant has failed to produce any documents in support of his claim, the Court does not make any award under this head. C. Default interest 65. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court observed that the applicant had been fined in proceedings regarded under domestic law as administrative rather than criminal. However, the offence for which the applicant had been fined fell within the sphere protected by criminal law, given that it had the characteristic features attaching to criminal offences, as it aimed to punish and deter socially unacceptable conduct. The Court further noted that the same facts – breaking into someone’s apartment and beating a person up – had been at the centre both of the fine imposed by the mayor and the charges brought by the prosecution. As it had not been appealed, the fine had become final. The domestic courts had not terminated the subsequent criminal proceedings, given that the Supreme Court had consistently ruled that criminal proceedings could be opened against persons already punished in administrative proceedings. Accordingly, the Court held that there had been a violation of Article 4 of Protocol No. 7, finding that the applicant had been convicted – separately in administrative and criminal proceedings – for the same conduct, the same facts and the same offence. |
30 | Affiliation- and inheritance-related rights | II. RELEVANT DOMESTIC LAW AND PRACTICE 15. The Children Born outside Marriage (Legal Status) Act of 19 August 1969, which came into force on 1 July 1970, provided that on the father ’ s death, children born outside marriage after 1 July 1949 – shortly after the entry into force of the Basic Law – were entitled to compensation from the heirs in an amount equivalent to their share of the estate ( Erbersatzanspruch ). The sole exception concerned children born outside marriage before 1 July 1949: the first sentence of section 12(10)(2) of the Act excluded them from any statutory entitlement to the estate and from the right to financial compensation. 16. With regard to further relevant domestic law and practice, the Court refers to its judgment in Brauer v. Germany (no. 3545/04, §§ 17 to 24, 28 May 2009). THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 17. The applicant complained that as a child who had been born outside marriage she had been unable to assert her inheritance rights and that there had thus been a violation of Article 14 of the Convention taken in conjunction with Article 8. These provisions read respectively as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... birth ...” Article 8 “1. Everyone has the right to respect for his ... family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 18. The Government contested that argument. A. Admissibility 1. Exhaustion of domestic remedies 19. The Government submitted that the applicant had not exhausted domestic remedies in respect of her complaint under Article 14 of the Convention taken in conjunction with Article 8 and put forward three arguments. 20. Firstly, in applying for the right to administer her father ’ s estate, the applicant had failed to initiate proceedings suitable to establish a legally binding inheritance claim and had thus not chosen an appropriate remedy. 21. Secondly, the applicant, before the Regional Court, had neither claimed that there had been an interference with her right to respect for her family life pursuant to Article 8 of the Convention, nor demonstrated, in addition to biological parentage, any personal ties indicating the existence of a sufficiently continuous relationship between herself and her father. The submission of those facts in her appeal to the Court of Appeal had been too late as the Court of Appeal had been bound by the facts established before the Regional Court. Thus, the applicant had failed to sufficiently present the facts before the domestic courts from which she wished to derive a violation of the Convention. 22. Thirdly, the applicant – as the Federal Constitutional Court had expressly stated – had failed sufficiently to substantiate her constitutional complaint because she had not properly addressed the arguments of the Munich Court of Appeal ’ s decision and had, in view of the Federal Constitutional Court ’ s settled case-law on the question of inheritance rights of children born outside marriage, been obliged to give further reasons, which she had not done. 23. The applicant contested those arguments. 24. In determining whether, in these circumstances, the applicant can be considered to have exhausted domestic remedies, the Court reiterates that the purpose of the requirement under Article 35 § 1 of the Convention that domestic remedies must be exhausted is to afford the Contracting States the opportunity of preventing or putting right – normally through the courts – the violations alleged against them before those allegations are submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI ). If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III). 25. The Court notes that the Government based their objection that the applicant had not exhausted domestic remedies with respect to her complaint under Article 14 of the Convention taken in conjunction with Article 8 on three main arguments. Those were the failure to choose the right domestic remedy for her claim, a failure to demonstrate family ties with her father before the Regional Court and, lastly, the insufficient reasoning of her constitutional complaint. 26. The Court observes with regard to the Government ’ s first argument that the applicant ’ s application for administration of the estate was refused on the grounds that she had no right to apply for such an order as she was a child born outside marriage and could thus not be a statutory heir. The applicant ’ s related complaint presented before the Court, namely discrimination on the grounds of her birth, was expressly addressed by the Court of Appeal. Having regard to the clear stance the domestic courts had taken in the proceedings at issue in respect of the applicant ’ s inheritance rights, the Court considers that, in the circumstances of the present case, bringing further proceedings aimed at establishing an inheritance claim had not been an effective remedy which the applicant had been obliged to exhaust. 27. As regards the second argument, the Court notes that the applicant applied on 14 January 2009 to the Memmingen District Court for the right to administer her father ’ s estate, asserting her inheritance rights. She submitted that between 2002 and 2007 she had regularly visited her father and talked to him on the telephone and that, at a later stage, her health had prevented her from visiting him. Telephone calls had been impossible with regard to her father ’ s health. The retirement home where her father had lived had been in possession of her address and telephone number and it had telephoned her on several occasions (see paragraph 7 above). In her appeal to the Munich Court of Appeal the applicant argued that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would discriminate against her and breach her inheritance rights and was therefore not in conformity with the Basic Law (see paragraph 11 above). Thus, even though it is true that the applicant did not explicitly refer to Article 8 of the Convention in her initial application of 14 January 2009 to the Memmingen District Court, she named facts establishing not only biological parentage, but also personal ties with her father. The complaint was therefore sufficiently presented before the domestic courts. 28. Turning to the last argument, the Court observes that the applicant in her submissions to the Federal Constitutional Court gave a complete account of the proceedings before the lower courts, alleged discrimination due to her status as a child born outside marriage and referred to several decisions of the Constitutional Court to substantiate her reasoning. The Court notes in this connection that it has previously considered, in the particular circumstances of several cases, that domestic remedies had been exhausted for the purposes of Article 35 § 1 of the Convention despite the fact that the applicant ’ s constitutional complaint had been dismissed as inadmissible, as the substance of the complaint had been sufficiently raised before the Federal Constitutional Court (see, inter alia, Uhl v. Germany (dec.), no. 64387/01, 6 May 2004, and Schwarzenberger v. Germany, no. 75737/01, § 31, 10 August 2006). Having regard to the applicant ’ s submissions before the Federal Constitutional Court, the Court finds that the applicant expressly and sufficiently raised the substance of the complaint which she brought before this Court already before the Federal Constitutional Court. As a consequence, she must be regarded as having complied with the requirements under Article 35 § 1 of the Convention for an exhaustion of domestic remedies also in this respect. 29. In view of the foregoing, the Government ’ s objection of failure to exhaust domestic remedies must be dismissed. 2. Applicability of Article 14 of the Convention 30. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Fabris v. France [GC], no. 16574/08, § 47, ECHR 2013 (extracts), and Brauer, cited above, § 28 ). 31. The Court must therefore determine whether the facts at issue in the present case fall within the ambit of Article 8 of the Convention. 32. In this connection, the existence or non-existence of “family life” within the meaning of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties, in particular the demonstrable interest in and commitment by the father to the child both before and after the birth (see, among other authorities, Brauer, cited above, § 30). Furthermore, a right of succession between children and parents is so closely related to family life that it comes within the sphere of Article 8 (see Marckx v. Belgium, 13 June 1979, § 52, Series A no. 31, and Camp and Bourimi v. the Netherlands, no. 28369/95, § 35, ECHR 2000-X). 33. In the instant case the Court observes that the applicant ’ s father recognised her and that the applicant corresponded regularly with her father and visited her father and his wife once a year until 1959. Because of the difficult circumstances resulting from the existence of two separate German States, visits were impossible between 1959 and 1984, when the applicant moved to the FRG. In 1984, the applicant re-established regular visits and visited her father until 2007, when her own health prevented her from further visits. Furthermore, she regularly talked to her father on the telephone, until his health prevented this. Lastly, it is not contested that the retirement home telephoned her on several occasions, which shows that it regarded the applicant as being closely related to her father. 34. Accordingly, the Court is in no doubt that the facts of the case fall within the ambit of Article 8 of the Convention. Article 14 of the Convention can therefore apply, taken in conjunction with Article 8. 3. Conclusion 35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 36. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations. For the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Fabris, cited above, § 56; and Mazurek v. France, no. 34406/07, § § 46 and 48, ECHR 2000-II). 37. The Court notes at the outset that the Government did not dispute the fact that the application of the relevant provisions of domestic law gave rise to a difference in treatment for a child born outside marriage before the cut ‑ off date of 1 July 1949, as compared with a child born within marriage, a child born outside marriage after that date and also, since German reunification, a child born outside marriage before that date who was covered by the law of the former GDR because the father had been resident in GDR territory at the time reunification had taken effect (compare Brauer, cited above, § 34). 38. It must therefore be determined whether the difference in treatment was justified. 39. The applicant submitted that the difference in treatment was not based on any objective justification. The application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act discriminated against her, breached her inheritance rights and was therefore not in conformity with the Basic Law. There was no need to protect the legitimate expectations of the deceased or other heirs apart from his father ’ s wife as she was her father ’ s only daughter and her father had bequeathed his whole estate to his wife. Furthermore, cultural and social changes within society had to be considered in the interpretation of the Basic Law. 40. The Government, on the contrary, submitted that the difference in treatment had been based on an objective and reasonable justification. The decisions taken by the legislature and the domestic courts had been appropriate and not discriminatory. The intention of the legislature had been to preserve legal certainty and any “legitimate expectations ” that the deceased and their families might have had in view of the Federal Constitutional Court ’ s settled case-law in that regard and in view of the legislature ’ s repeated explicit decisions that the exception provided for in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was to be maintained. Furthermore, in the present case the deceased had bequeathed his whole estate to his wife, knowing that the applicant, under domestic law, was excluded from any statutory claims, a decision which had to be respected. 41. The Court reiterates in this connection that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Marckx, cited above, § 41 ). Today the member States of the Council of Europe attach great importance to the question of equality between children born in and out of wedlock as regards their civil rights. Very weighty reasons would accordingly have to be advanced before a difference of treatment on the grounds of birth out of wedlock could be regarded as compatible with the Convention (see, with further references, Fabris, cited above, § 59 ). 42. The Court considers that the aim pursued by maintaining the impugned provision, namely the preservation of legal certainty and the protection of the deceased and his family, is still arguably a legitimate one (compare Brauer, cited above, § 41). 43. With regard to the question of whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued, the Court reiterates that, having regard to the evolving European context in this sphere, which it cannot neglect in its necessarily dynamic interpretation of the Convention, the aspect of protecting the “legitimate expectations ” of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and within marriage ( see Fabris, cited above, 68, and Brauer, cited above, § 43). It reiterates in this connection that as early as 1979 it held in Marckx (cited above, §§ 54-59) that the distinction made for succession purposes between “illegitimate” and “legitimate” children raised an issue under Articles 14 and 8 taken together (see Brauer, cited above, § 43). 44. The Court further considers it to be decisive that the applicant ’ s father recognised her. Furthermore, she visited him and his wife between 1954 and 19 59 once a year (compare Brauer, cited above, § 44). After she had left the GDR and moved to Bavaria, those visits continued on a regular basis until the applicant ’ s health prevented them. Thus the applicant was not a descendant whose existence was unknown to her father ’ s wife (compare Fabris, cited above, § 68). 45. The Court notes that the deceased had no direct descendants apart from the applicant, but, in contrast to Brauer, he had a wife, who was appointed sole heir. It takes note of the Government ’ s argument on that point (see paragraph 40 above) according to which that decision had to be respected. Nevertheless, it would appear that even in the eyes of the national authorities the expectations of a sole heir are not protected in all circumstances, as a will such as the one in question does not exclude the right of children born inside marriage and of children born outside marriage after the cut-off date of 1 July 1949 to a statutory share of a deceased ’ s estate. That fact must have had a bearing on the expectations of the father ’ s wife about succeeding to establish undisputed rights to the estate. 46. Furthermore, European case-law and the national legislative reforms have shown a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage. The Court notes that the applicant brought inheritance -related claims before the domestic courts in 2009, directly after her father ’ s death. The proceedings the applicant brought were still pending before the Federal Constitutional Court at the time of the delivery of the judgment in Brauer (cited above), in which this Court found that inequality of inheritance rights on the grounds of birth outside marriage was incompatible with the Convention in a case comparable to that of the applicant. That was sufficient to arouse justified doubts as to whether the applicant would be excluded from any claims to her father ’ s estate (compare Fabris, cited above, § 69). 47. Moreover, the Court has to bear in mind that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act excluded the applicant from any statutory entitlement to the estate, without affording her any financial compensation (compare Brauer, cited above, § 44). 48. The foregoing considerations are sufficient to enable the Court to conclude that there was not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. 49. There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 51. The applicant claimed the sum of 6,000 euros (EUR) in respect of pecuniary damage, corresponding to the minimum amount she would have inherited as a statutory heir. She also claimed compensation for non ‑ pecuniary damage, but left the amount to the discretion of the Court. The applicant also claimed EUR 200 of costs for the domestic proceedings and EUR 1,500 as expenses for legal representation. 52. The Government contested the sum of EUR 6,000 in respect of pecuniary damage, given that the applicant did not submit any evidence. The Government alleged that the applicant had not suffered any non ‑ pecuniary damage. They further submitted that only the claim for costs of EUR 200 had been accompanied by relevant documents and that the applicant had failed to provide supporting documents with regard to her expenses for legal representation. The amount of statutory reimbursement in that regard would total approximately EUR 500. 53. In the circumstances of the case, the Court considers that the question of the application of Article 41 of the Convention is not ready for decision. Consequently, it must be reserved and the subsequent procedure fixed taking due account of the possibility of an agreement between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court). The Court allows the parties three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention to submit their observations on the matter and, in particular, to notify the Court of any agreement that they may reach. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. It found that the aims pursued by the applicant’s difference in treatment, namely the preservation of legal certainty and the protection of the deceased and his family, had been legitimate. However, the Court was not satisfied that excluding children born out of wedlock before a certain cut-off point provided for by legislation had been a proportionate means to achieving the aims sought to be achieved. Decisive for that conclusion was the fact that the applicant’s father had recognised her. Furthermore, she had regularly visited him and his wife. The latter’s awareness of the applicant’s existence, as well as of the fact that the legislation allowed children born inside marriage and outside marriage after the cut-off date to inherit, had therefore to have had a bearing on her expectations to her husband’s estate. In any case, the Court noted, European case-law and national legislative reforms had shown a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage. |
864 | In the context of criminal justice | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Home Office Guidelines 23. Guidelines on the use of equipment in police surveillance operations (the Home Office Guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application. 24. In each case, the authorising officer should satisfy himself that the following criteria are met: (a) the investigation concerns serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried; (c) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism and (d) the use of equipment must be operationally feasible. The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence. B. The Police and Criminal Evidence Act 1984 (“PACE”) 25. Section 78(1) of PACE provides as follows: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” 26. In R. v. Khan [1996] 3 All ER 289, the House of Lords held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion to admit or exclude such evidence under section 78 of PACE. The evidence obtained by attaching a listening device to a private house without the knowledge of the occupants in breach of Article 8 of the Convention was admitted in that case. C. Code of Practice annexed to PACE 27. The Code of Practice was issued under sections 66-67 of PACE, laid before Parliament and then made a statutory instrument. It provided as relevant: “D:2.6 The police may hold a parade other than an identification parade if the suspect refuses, or having agreed to attend, fails to attend an identification parade. D:2.10 The identification officer may show a witness a video film of a suspect if the investigating officer considers, whether because of the refusal of the suspect to take part in an identification parade or group identification or other reasons, that this would in the circumstances be the most satisfactory course of action. D:2.11 The suspect should be asked for his consent to a video identification and advised in accordance with paragraphs 2.15 and 2.16. However, where such consent is refused the identification officer has the discretion to proceed with a video identification if it is practicable to do so. D:2.12 A video identification must be carried out in accordance with Annex B. ... D:2.15 Before a parade takes place or a group identification or video identification is arranged, the identification officer shall explain to the suspect: (i) the purposes of the parade or group identification or video identification; (ii) that he is entitled to free legal advice (see paragraph 6.5 of Code C); (iii) the procedures for holding it (including the right to have a solicitor or friend present); ... (vi) that he does not have to take part in a parade, or co-operate in a group identification, or with the making of a video film and, if it is proposed to hold a group identification or video identification, his entitlement to a parade if this can practicably be arranged; (vii) if he does not consent to take part in a parade or co-operate in a group identification or with the making of a video film, his refusal may be given in evidence in any subsequent trial and police may proceed covertly without his consent or make other arrangements to test whether a witness identifies him; ... D:2.16 This information must also be contained in a written notice which must be handed to the suspect. The identification officer shall give the suspect a reasonable opportunity to read the notice, after which he shall be asked to sign a second copy of the notice to indicate whether or not he is willing to take part in the parade or group identification or co-operate with the making of a video film. The signed copy shall be retained by the identification officer.” 28. Annex B set out the details for arranging a video identification, including how, the number and appearance of participants etc. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 29. The applicant complained that he was covertly videotaped by the police, invoking Article 8 of the Convention which provides as relevant: “1. Everyone has the right to respect for his private ... life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties' submissions 1. The applicant 30. The applicant submitted that filming of him in the police station violated his right to respect for private life. He disputed that the custody area could be regarded as a public area or that the camera was running as a matter of routine. It had been run at a different speed to produce a sharper, clearer image of the applicant. He was only in the police station because he had been brought there by the police, and if anything persons in custody required greater protection than the public. He denied that he knew of the camera or that he was aware that he was being filmed. Even if he saw the camera, he could not have known that it was to be used unlawfully for identification purposes. Furthermore, the purpose of the recording was to obtain evidence to prosecute the applicant. 31. The applicant argued that the videotape was made in circumstances which breached the law deliberately from start to finish and could not be regarded as in accordance with law. The courts could not be regarded as a safeguard where they admitted such evidence in breach of the law and the Convention. The breaches were not procedural but had a substantive effect, for if the Code had been followed it was highly likely that the applicant would have received proper legal advice, agreed to a formal identification parade, would have objected to and asked for the replacement of unsuitable volunteers and may not have been identified. It could never, in his view, be legitimate for agents of the Government to deliberately and extensively breach the law. 32. The applicant submitted that the prosecution argued at trial and on appeal that the actions of the police were lawful because they had the authority of the Guidelines, not PACE. The Guidelines however, whatever the view of the domestic courts, were administrative and not primary legislation and could not supplant the specific procedures set down in PACE. The applicant accepted that PACE and the code satisfied the requirements of “law” under the second paragraph. Since however the trial court found three specific breaches of the applicable code (though the facts supported breaches of further provisions), the procedure adopted by the police could not be regarded as regular and authorised by PACE. In particular, PACE could not be regarded as authorising the collection of footage without the suspect's knowledge where the rules had not been followed. 2. The Government 33. The Government submitted that the filming did not take place in a private place, or even in the police cells, with any intrusion into the “inner circle” of the applicant's private life. It was carried out in the custody suite of the police station which was a communal administrative area through which all suspects had to pass and where the closed circuit video camera, which was easily visible, was running as a matter of security routine. The images related to public, not private, matters. The applicant did not have a reasonable expectation of privacy in such an environment and had been informed that he was there for identification. Further, the applicant was not filmed for surveillance purposes but for identification purposes and only for use in the criminal proceedings in question akin to the cases of Friedl v. Austria (Commission report of 19 May 1994) and Lupker and others v. the Netherlands (Commission report of 7 December 1992). Nor could it be said that the footage was “processed”: the section concerning the applicant was simply extracted and put with footage of the eleven volunteers and there was no public disclosure or broadcast of the images. 34. Even assuming an interference occurred, the Government submitted that it was in accordance with the law as the legal basis for the filming could be found in the statutory authority of the PACE Code of Practice, which was both legally binding and publicly accessible. The 1984 Guidelines were not the legal basis for the filming. The Code provided for a video identification procedure and the collection of footage without the suspect's knowledge if the suspect does not consent to take part in an identification parade. The fact that the Code was breached in three respects in the applicant's case however did not change its status as the basis for the compilation of the tape in domestic law and the domestic courts regarded the Code as sufficient legal basis for the compilation of the tape. The police obtained permission under the 1984 Guidelines as this dealt with the procedure for securing permission to obtain footage and the permitted mechanisms for obtaining it as distinct from the Code which provided the statutory authority for obtaining the footage. 35. The fact that there were breaches of the Code in this case was not determinative of whether there was a breach of Article 8 as it was the quality of the law that was important. The quality of the law was such as to provide sufficient safeguard against arbitrariness and abuse, the Code setting out procedures in very precise detail and the criminal courts having the power to exclude the resultant evidence under section 78 where necessary. Further, the breaches were not deliberate, and were breaches of procedure not substance, and the courts found no unfairness resulted. Further, any interference pursued the legitimate aim of protecting public safety, preventing crime and protecting the rights of others and since the applicant had failed or refused to attend four identification parades could reasonably be considered as “necessary in a democratic society”. B. The Court's assessment 1. The existence of an interference with private life 36. Private life is a broad term not susceptible to exhaustive definition. Aspects such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. The Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” ( P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX, with further references). 37. It cannot therefore be excluded that a person's private life may be concerned in measures effected outside a person's home or private premises. A person's reasonable expectations as to privacy is a significant though not necessarily conclusive factor ( P.G. and J.H v. United Kingdom, § 57). 38. The monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual's private life (see, for example, Herbecq and Another v. Belgium, applications nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, DR 92-A, p. 92). On the other hand, the recording of the data and the systematic or permanent nature of the record may give rise to such considerations (see, for example, Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR 2000-V, and Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II, where the compilation of data by security services on particular individuals even without the use of covert surveillance methods constituted an interference with the applicants' private lives). While the permanent recording of the voices of P.G. and J.H. was made while they answered questions in a public area of a police station as police officers listened to them, the recording of their voices for further analysis was regarded as the processing of personal data about them amounting to an interference with their right to respect for their private lives (the above-cited P.G. and J.H. judgment, at §§ 59-60). Publication of the material in a manner or degree beyond that normally foreseeable may also bring security recordings within the scope of Article 8 § 1. In Peck v. the United Kingdom (no. 44647/98, judgment of 28 January 2003, ECHR 2003-...), the disclosure to the media for broadcast use of video footage of the applicant whose suicide attempt was caught on close circuit television cameras was found to be a serious interference with the applicant's private life, notwithstanding that he was in a public place at the time. 39. In the present case, the applicant was filmed on video in the custody suite of a police station. The Government argued that this could not be regarded as a private place, and that as the cameras which were running for security purposes were visible to the applicant he must have realised that he was being filmed, with no reasonable expectation of privacy in the circumstances. 40. As stated above, the normal use of security cameras per se whether in the public street or on premises, such as shopping centres or police stations where they serve a legitimate and foreseeable purpose, do not raise issues under Article 8 § 1 of the Convention. Here, however, the police regulated the security camera so that it could take clear footage of the applicant in the custody suite and inserted it in a montage of film of other persons to show to witnesses for the purposes of seeing whether they identified the applicant as the perpetrator of the robberies under investigation. The video was also shown during the applicant's trial in a public court room. The question is whether this use of the camera and footage constituted a processing or use of personal data of a nature to constitute an interference with respect for private life. 41. The Court recalls that the applicant had been brought to the police station to attend an identity parade and that he had refused to participate. Whether or not he was aware of the security cameras running in the custody suite, there is no indication that the applicant had any expectation that footage was being taken of him within the police station for use in a video identification procedure and, potentially, as evidence prejudicial to his defence at trial. This ploy adopted by the police went beyond the normal or expected use of this type of camera, as indeed is demonstrated by the fact that the police were required to obtain permission and an engineer had to adjust the camera. The permanent recording of the footage and its inclusion in a montage for further use may therefore be regarded as the processing or collecting of personal data about the applicant. 42. The Government argued that the use of the footage was analogous to the use of photos in identification albums, in which circumstance the Commission had stated that no issue arose where they were used solely for the purpose of identifying offenders in criminal proceedings ( Lupker v. the Netherlands, no. 18395/91, Commission decision of 7 December 1992, unreported). However, the Commission emphasised in that case that the photographs had not come into the possession of the police through any invasion of privacy, the photographs having been submitted voluntarily to the authorities in passport applications or having been taken by the police on the occasion of a previous arrest. The footage in question in the present case had not been obtained voluntarily or in circumstances where it could be reasonably anticipated that it would be recorded and used for identification purposes. 43. The Court considers therefore that the recording and use of the video footage of the applicant in this case discloses an interference with his right to respect for private life. 2. The justification for the interference with private life 44. The Court will accordingly examine whether the interference in the present case is justified under Article 8 § 2, notably whether it was “in accordance with the law”. 45. The expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law; secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and that it is compatible with the rule of law (see, amongst other authorities, Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II, p. 540, § 55). It also requires that the measure under examination comply with the requirements laid down by the domestic law providing for the interference. 46. The Government's observations focus on the existence and quality of the domestic law authorising the taking of video film of suspects for identification purposes, submitting that an adequate basis for the measure existed in the provisions of PACE and its Code which set out detailed procedures and safeguards. While the police were required to obtain authorisation under the Home Office Guidelines (a form of instruction found in previous cases not to satisfy requirements of foreseeability and accessibility), they sought to distinguish the procedure for the police to obtain consent to use the camera as such from the statutory authority for the taking and use of the film. 47. Noting that the applicant agreed that PACE and its Code furnished a legal basis for the measure in his case, the Court considers that the taking and use of video footage for identification had sufficient basis in domestic law and was of the requisite quality to satisfy the two-prong test set out above. That is not however the end of the matter. As pointed out by the applicant, the trial court, with which the appeal court agreed, found that the police had failed to comply with the procedures set out in the applicable code in at least three respects. The judge found shortcomings as regarded police compliance with paragraphs D.2.11, D.2.15 and D.2.16 of the Code of Practice (see paragraph 17 above), which concerned, significantly, their failure to ask the applicant for his consent to the video, to inform him of its creation and use in an identification parade, and of his own rights in that respect (namely, to give him an opportunity to view the video, object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape). In light of these findings by domestic courts, the Court cannot but conclude that the measure as carried out in the applicant's case did not comply with the requirements of domestic law. 48. Though the Government have argued that it was the quality of the law that was important and that the trial judge ruled that it was not unfair for the videotape to be used in the trial, the Court would note that the safeguards relied on by the Government as demonstrating the requisite statutory protection were, in the circumstances, flouted by the police. Issues relating to the fairness of the use of the evidence in the trial must also be distinguished from the question of lawfulness of the interference with private life and are relevant rather to Article 6 than to Article 8. It recalls in this context its decision on admissibility of 26 September 2002 in which it rejected the applicant's complaints under Article 6, observing that the obtaining of the film in this case was a matter which called into play the Contracting State's responsibility under Article 8 to secure the right to respect for private life in due form. 49. The interference was not therefore “in accordance with the law” as required by the second paragraph of Article 8 and there has been a violation of this provision. In these circumstances, an examination of the necessity of the interference is not required. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 51. The applicant argued that an award of non-pecuniary damage should be made to reflect the deliberate flouting of national and Convention law by the way in which the applicant was misled and covertly filmed to obtain evidence for use at trial. Such an award was necessary, in his view, to enforce respect of citizens' rights. It should also be greater than that made in P.G. and J.H. v. the United Kingdom, where no real argument was made regarding the amount of damages. He emphasised that in his case his treatment has contributed greatly to his sense of insecurity and problems of accepting the good faith of public authorities. He also was deprived of his liberty throughout the criminal trial, suffered two trials and an appeal hearing, and as a result lost earnings, job opportunities and humiliation of a trial which should never have taken place due to blatant breaches in the obtaining of evidence. He proposed, by analogy with malicious prosecution and misfeasance in a public office awards in domestic cases, an award of 10,000 pounds sterling (GBP). 52. The Government pointed out that the applicant's complaints under Article 6 had been rejected as inadmissible and claims relating to his trial and detention could not be made. There was no convincing distinction between his case and P.G. and J.H. and the comparisons made with domestic awards were irrelevant, inter alia, since the torts were very different from the elements in issue under Article 8. 53. The Court agrees with the Government that domestic scales of damages in relation to torts, not relevant, to the facts of this case are of little assistance. Considering nonetheless that the applicant must be regarded as having suffered some feelings of frustration and invasion of privacy by the police action in this case, it awards, for non-pecuniary damage, the sum of 1,500 euros (EUR). B. Costs and expenses 54. The applicant claimed legal costs and expenses of a total of GBP 8,299.41, inclusive of value-added tax (VAT), consisting of GBP 3,841.29 for his solicitor and GBP 4,458.12 for counsel 55. The Government considered that the applicant's claims for legal costs and expenses were on the high side for an application that did not go beyond the written stage. They considered a figure of GBP 4,000 would be reasonable. 56. Taking into account the fact that the applicant's complaints were only declared partly admissible and the amount of legal aid paid by the Council of Europe, the Court makes an award of EUR 9,500, inclusive of VAT. C. Default interest 57. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention. It noted that there had been no indication that the applicant had had any expectation that footage would be taken of him in the police station for use in a video identification procedure and, potentially, as evidence prejudicial to his defence at trial. That ploy adopted by the police had gone beyond the normal use of this type of camera and amounted to an interference with the applicant’s right to respect for his private life. The interference in question had further not been in accordance with the law because the police had failed to comply with the procedures set out in the applicable code: they had not obtained the applicant’s consent or informed him that the tape was being made; neither had they informed him of his rights in that respect. |
527 | Attacks on Roma villages and destruction of houses and possessions | II. RELEVANT DOMESTIC LAW A. Constitution of Ukraine 51. Article 24 of the Constitution of Ukraine provides as follows: “... There shall be no privileges or restrictions based on race, skin colour, ... [or] ethnic or social origin ...” B. Criminal Code of 2001, as worded at the material time 52. Articles 67, 161, 294, 296, 365 and 367 of the Code read as follows: Article 67. Circumstances aggravating a punishment “1. For the purposes of imposing a punishment, the following circumstances shall be deemed to be aggravating: ... (3) the commission of a crime on the grounds of racial, national or religious enmity or hostility; ...” Article 161. Violation of citizens’ equality on the grounds of their race, nationality or religious beliefs “1. Intentional acts aimed at inflaming ethnic, racial or religious hostility and hate, or attacking ethnic dignity or insulting citizens in connection with their religious beliefs – as well as the direct and indirect limitation of rights or the conferring of direct or indirect privileges on the basis of race, skin colour, political, religious or other beliefs, sex, ethnic or social origin, property status, place of residence, language or other characteristics – shall be punishable by a fine of up to fifty times the level of monthly non-taxable income or by correctional work for a period of up to two years, or by restriction on liberty for a period of up to five years, with or without a prohibition on occupying certain positions or engaging in certain activities for up to three years. 2. The same acts, where combined with violence, deceit, or threats or committed by a person in a position of authority, shall be punishable by correctional work for a period of up to two years or by imprisonment for up to five years. 3. The acts described in paragraphs 1 and 2 of this Article, where committed by an organised group or if they have caused death or have resulted in other grave consequences, shall be punishable by imprisonment for two to five years.” Article 294. Mass disorder (rioting) “1. Organisation and participation in mass disorder associated with violence against persons, pogroms, arson, destruction of property, occupation of buildings, [or] forceful expulsion of citizens... shall be punishable by five to eight years’ imprisonment. 2. The same acts, where they led to death or other grave consequences, shall be punishable by eight to fifteen years’ imprisonment.” Article 296. Disorderly conduct (hooliganism) “1. Disorderly conduct, namely a serious breach of public order motivated by flagrant disrespect for the community, combined with particular impudence and exceptional cynicism ... 2. ... committed by a group of persons shall be punishable by a restriction on liberty for up to five years or imprisonment for up to four years.” Article 365. Excess of power or office “1. Excess of power or office, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or public interest or to the lawful interests, rights and freedoms of natural or legal persons shall be punishable by [the obligation to undertake] correctional works for a period of up to two years or by a limitation on liberty for a period of up to five years or by imprisonment for up five years and by a prohibition on occupying certain positions or engaging in certain activities for up to three years. ... 3. Any actions provided by paragraph 1 or 2 of this Article, if they had any grave consequences, shall be punishable by seven to ten years’ imprisonment and by a prohibition on the right to occupy certain positions or engage in certain activities for up to three years.” Article 367. Neglect of official duty “1. Neglect of official duty – that is to say failure to perform or improper performance on the part of an official of his or her official duties owing to negligence, where it causes any significant damage to the legally protected rights and interests of individual citizens, State and public interests or those of legal entities, shall be punishable by a fine amounting to between fifty and one hundred and fifty times the [level of monthly non-taxable] income or by correctional work for up to two years or by a restriction on liberty for up to three years and by a prohibition on occupying certain positions or engaging in certain activities for up to three years. 2. The same act, if it has any grave consequences, shall be punishable by imprisonment for two to five years and a prohibition on occupying certain positions or engaging in certain activities for up to three years with or without a fine amounting to between a hundred and two hundred and fifty times the [level of monthly non-taxable] income.” C. Code of Criminal Procedure of 1960 (in effect at the relevant time) 53. Article 28 of the Code provided that a person who had sustained pecuniary damage as a result of a crime could lodge a civil claim against an accused or persons liable for the actions of the accused. Article 50 required the investigator or the court to deliver a formal decision recognising the person as a civil plaintiff or refusing such recognition. 54. Article 49 provided that a person who had sustained non-pecuniary, physical or property damage as a result of a crime could be recognised as an aggrieved party. It required the investigator or the court to issue a formal decision recognising the person as an aggrieved party or refusing such recognition. 55. Article 206 of the Code provided that a pre-trial investigation in a criminal case could be suspended, in particular, if the investigation had failed to identify the perpetrator. 56. Article 121 provided that any disclosure of information about pre-trial investigation had to be authorised by the investigator in charge of the case or the prosecutor. 57. Under Articles 234-36 of the Code, the acts of an investigator could be appealed against to a prosecutor. The investigator’s acts and the decisions of the prosecutor in respect of complaints could also be appealed against before a court, but the latter would only examine them at the preliminary hearing of the case in question – that is to say after the relevant investigation had been completed and the case had been sent to court with a bill of indictment. D. Operational-Search Activities Act of 1992 58. Section 2 of the Act describes operational search activities as a system of open and covert search, intelligence and counterintelligence measures. Section 8 provides that in the course of operational search activities the relevant law enforcement units can interview individuals, conduct controlled purchases, examine documents, enter and examine premises (including in a covert manner), infiltrate criminal groups, engage in wiretapping and surveillance, employ informers, create decoy companies and establishments, etc. III. RELEVANT INTERNATIONAL DOCUMENTS 59. The relevant parts of the second report on Ukraine by the European Commission against Racism and Intolerance (ECRI), adopted on 14 December 2001, read as follows: “56. As is the case in some European countries, the Roma/Gypsy population of Ukraine is faced with situations of severe socio-economic disadvantage, but also with manifestations of prejudice, discrimination and violence on the part of the majority population and sometimes on the part of the authorities, particularly law enforcement officials. ECRI expresses concern at this situation and considers that policies are urgently needed to address the position of the Roma/Gypsy communities in Ukraine in order to ensure that the members of these communities enjoy in practice the same rights as the rest of the population of Ukraine. ECRI believes that the first necessary step towards developing an appropriate response to the problems faced by the Roma/Gypsy population of Ukraine is the recognition on the part of the authorities that such problems exist and that they need to be addressed ... ... 58. Another priority area for action identified by ECRI is the behaviour of the law enforcement officials vis-à-vis members of the Roma/Gypsy communities. In this respect, ECRI notes with concern frequent reports of excessive use of force, ill ‑ treatment, verbal abuse and destruction of property by law enforcement personnel. Discriminatory practices are also reported to be widespread and include arbitrary checks, unwarranted searches, confiscation of documents and, as noted in ECRI’s first report, discriminatory enforcement of crime prevention policies targeting persons with criminal records. ECRI urges that action be taken to address manifestations of unlawful behaviour on the part of law enforcement officials generally, including through a more effective institutional response to such manifestations and through training and awareness raising measures. In addition, noting reports that the response of the police to crimes committed by the general population against Roma/Gypsies is often inadequate, ECRI recommends that the Ukrainian authorities take measures to ensure that the police react promptly and effectively to all crimes, including those committed against Roma/Gypsies and, in line with its recommendations formulated above, to ensure that the racist element of such offences is duly taken into account.” 60. The relevant parts of the third report on Ukraine by the ECRI, adopted on 29 June 2007, read as follows: “76. As previously indicated, Roma face a number of problems in their relationship with the police and other law enforcement agencies. ECRI has received reports according to which some police officers illegally arrest and harass members of Roma communities... Attempts to find a common understanding between Roma organisations and the Ministry of Interior, the Office of the Prosecutor and law enforcement officials have reportedly yielded few results. ECRI has also received reports according to which Roma do not receive an adequate response from the police when they are the victims of crime.” 61. On 27 November 2002 the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities (“the Advisory Committee”) published its first opinion regarding Ukraine’s compliance with that Convention. It concerned the first monitoring cycle and was based on the Advisory Committee’s visit to Ukraine in December 2001. The relevant parts of the opinion read: “30. The Advisory Committee considers that Ukraine has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment and housing... These problems are exacerbated by the unsatisfactory situation of Roma in the educational system... The Advisory Committee is of the opinion that these issues merit increasing attention. ... 36. The Advisory Committee notes with concern that societal attitudes towards Roma remain negative, and sociological studies suggest that the prejudices towards Roma are markedly more widespread than towards persons belonging to other national minorities. The Advisory Committee believes that it would be helpful to design further initiatives aimed at promoting inter-cultural dialogue between Roma and others. 37. The Advisory Committee notes with concern that there have been incidents of discrimination and ill-treatment of Roma, including by law-enforcement officials, which have been reported inter alia by the Parliamentary Ombudsman. It is also concerned about credible reports about discrimination and hostility, including by law-enforcement officials, concerning asylum-seekers and other persons who have arrived in Ukraine relatively recently... The Advisory Committee deeply regrets that there appears to be some reluctance within the law-enforcement bodies to acknowledge and examine these problems, and it urges the authorities to increase the vigour with which these incidents are investigated and prosecuted.” 62. The Advisory Committee’s second opinion on Ukraine, issued on 30 May 2008, reads, in the relevant part: “79. Some interlocutors informed the Advisory Committee that persons belonging to national minorities are affected by unjustified and/or unlawful stop and search procedures which are carried out by law-enforcement officials. Roma, as well as persons belonging to visible minorities living in various regions of Ukraine, seem to be particularly targeted by this practice which is allegedly accompanied, in certain cases, by calls for bribes. Raids and home searches in Roma settlements, sometimes accompanied by an excessive use of force, have reportedly not ceased. Cases of ill-treatment by the police are still being reported, and the complaints brought against the officials under suspicion are often not properly investigated. Moreover, there are reports of Roma convicted of crimes and subsequently sentenced to imprisonment, without substantive proof of guilt. By contrast, law-enforcement agencies are reported to be more reluctant to investigate crimes committed against Roma. Widespread negative stereotypes of the Roma population seem to be prevalent also within law enforcement agencies as well as the judiciary... and no doubt contribute to the risk of unequal treatment by these institutions.” THE LAW I. PRELIMINARY MATTERS A. Death of two applicants 63. The seventeenth and the eighteenth applicants died after this application had been lodged (see paragraph 5 above). 1. The parties’ submissions 64. The applicants’ representatives initially informed the Court of that fact in their letter of 23 February 2018. They stated that the seventeenth applicant’s wife and son and the eighteenth applicant’s wife and granddaughters wished to pursue the application in their stead. On that occasion they furthermore stated that the nineteenth applicant had also died and named certain individuals who wished to pursue the application in his stead. 65. In response to the Court’s invitation to provide evidence, the applicants’ representatives stated that in fact the nineteenth applicant had not died. On that occasion they also submitted that Ms Raisa Mikitovna Tsynya and Ms Lyubov Leontivna Tsynya – respectively, the wives of the seventeenth and eighteenth applicants – as well as Ms Ramina Nikolaevna Tsynya, Lyubov Nikolaevna Tsynya and Evgenya Tsynya – the eighteenth applicant’s granddaughters, had expressed their wish to pursue the application on behalf of the respective applicants. They submitted authority forms signed by those individuals and death certificates. 66. The Government submitted that the individuals purporting to pursue the application on behalf of the deceased had “failed to provide any supporting documents related to their relationship or consanguinity with the deceased, such as birth certificate, marriage certificate and more important (sic) inheritance certificates”. They invited the Court to refuse those individuals’ requests that they be allowed to pursue the application on behalf of the deceased. 67. The applicants’ representatives responded by submitting a copy of the marriage certificate showing that Lyubov Tsynya was the eighteenth applicant’s wife. As to Raisa Tsynya, they submitted that she had only been the seventeenth applicant’s partner (that is to say they had not been married to each other) and that she was therefore in no position to provide a marriage certificate. They pointed out that in the case of Velikova v. Bulgaria ((dec.), no. 41488/98, ECHR 1999 ‑ V (extracts)) the Court had allowed an unmarried partner to pursue a complaint following the death of the applicant. The applicants’ representatives submitted that the individuals in question were vulnerable and poor and could not be expected to provide certificates of inheritance. 2. The Court’s assessment 68. The Court firstly notes that the applicants died after they had lodged the application, a situation which according to its case-law is viewed differently from those instances where the applicant has died beforehand. Where the applicant has died after the application was lodged, the Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, with further references). In such cases, the decisive point is not whether the rights in question are or are not transferable to the heirs wishing to pursue the procedure, but whether the heirs can in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application with the Court (see Singh and Others v. Greece, no. 60041/13, § 26, 19 January 2017). 69. It is not contested that the individuals wishing to pursue the application on behalf of the deceased applicants have no formal status as their heirs. However, this in itself is not decisive as long as they can lay a claim to be their next of kin (contrast Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII – where the Court accepted that a relative who had not finalised his status as a heir nevertheless had such standing ‑ with Thévenon v. France (dec.), no. 2476/02, ECHR 2006 ‑ III, ‑ where it did not recognise the locus standi of an individual who was not the applicant’s relative, even though he was his friend and universal legatee). 70. As far as the seventeenth applicant is concerned, there is no evidence before the Court which would show that the individuals purporting to pursue the application on his behalf are his next of kin, and the individuals in question have not explained why they could not provide such evidence. 71. While initially the seventeenth applicant’s son was mentioned by the applicants’ representatives as wishing to pursue the application, there was no follow-up and the applicants’ representatives made no reference to him again after the Court’s request for evidence (see paragraphs 64 and 65 above). 72. As to the seventeenth applicant’s unmarried partner, she did not pursue any domestic proceedings on his behalf and was not recognised as such either by any domestic authority or the Government (contrast, for example, Velikova (dec.), cited above, Vogrinčič and Others v. Slovenia (dec.), nos. 15829/05 and 18618/06, 28 June 2011, and Ivko v. Russia, no. 30575/08, § 66, 15 December 2015). Even after clarifying her status as his unmarried partner, she has not described her relationship with the applicant in any detail, such as the period of their cohabitation, common children, etc. (contrast, for example, Velikova (dec.), cited above, and Pisarkiewicz v. Poland, no. 18967/02, § 29, 22 January 2008). 73. Given these circumstances, the Court concludes that it has not been shown that the individuals purporting to pursue the application in the seventeenth applicant’s stead have a legitimate interest in doing so. Accordingly, they do not have standing to pursue the proceedings. 74. Given that the Court will continue to examine the other applicants’ complaints, which are based entirely on the same facts, no particular circumstance relating to respect for the rights guaranteed by the Convention or its Protocols requires the Court to continue the examination of the application in respect of the seventeenth applicant (see, for example, Grigoryan and Sergeyeva v. Ukraine, no. 63409/11, § 45, 28 March 2017). 75. The Court accordingly finds that, as far as that applicant is concerned, the conditions in which a case may be struck out of its list, as provided in Article 37 § 1 of the Convention, are satisfied and decides to strike the application in respect of the seventeenth applicant out of its list. 76. As far as the eighteenth applicant is concerned, the application is being pursued by his wife. The Court has no reason to doubt that she may pursue the application in his stead. By contrast, the individuals claiming to be that applicant’s granddaughters did not submit any evidence in support of that claim and, therefore, have not demonstrated that they have the requisite standing to pursue the application in his stead. 77. Accordingly, the Court holds that the eighteenth applicant’s wife has standing to continue the present proceedings in his stead. 78. However, reference will still be made to “the eighteenth applicant” throughout the ensuing text. B. Victim status of some applicants 1. The parties’ submissions 79. The Government submitted that the second, fourth, eighth, fourteenth, sixteenth and nineteenth applicants had not been recognised as victims in the domestic criminal proceedings (see the Appendix) and had not submitted any evidence to show that they had been affected by the events in issue in the case. Moreover, in the course of the domestic investigation the police did not examine the houses of the fifth, thirteenth, fourteenth and nineteenth applicants. The Government considered this to constitute evidence that their houses had not been damaged in the attack. Accordingly, they could not claim to be victims of the alleged violations of the Convention. 80. The applicants responded that what was important in this context was the ineffectiveness of the domestic investigation, not those applicants’ formal status in those proceedings. Moreover, they pointed out that they had complained about the authorities’ failure to confer on some of them the formal status of aggrieved parties in the domestic proceedings (see paragraph 50 above). The applicants furthermore submitted that the fact that the houses of the fifth, thirteenth, fourteenth and nineteenth applicants and the damage done to them had not been examined by the police was attributable to the ineffectiveness of the investigation rather than to any fault on the applicants’ part. 2. The Court’s assessment 81. The Court notes that in her letter to the regional prosecutor’s office of 27 February 2005 (see paragraph 36 above) an official of the Romani Zbora NGO, acting on behalf of all the applicants other than the sixteenth (Ms Tsykolan), identified them as victims of the attack, enclosing their statements to that effect. In its response, the regional prosecutor’s office did not contest their situation as victims; on the contrary, it apparently implied that all of them had been granted formal status in the investigation (see paragraph 37 above). In view of the Government’s observations, the latter assessment by the prosecutor’s office appears to have been incorrect as no formal decision to grant the status of aggrieved parties to the second, fourth, eighth, fourteenth, sixteenth and nineteenth applicants was ever taken. However, neither does it appear that any formal decision was taken refusing them that status, even though the domestic law appears to have required such a formal decision (see paragraphs 53 and 54 above). In fact, there is no indication that there has been any decision-making or assessment of facts in respect of those applicants on the part of the domestic authorities. 82. The Court reiterates, in this respect, that according to the Court’s long-established case-law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity (see, for example, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). Therefore, a lack of recognition of applicants at the domestic level does not, in and of itself, prevent them being considered to be “victims” within the meaning of Article 34 of the Convention, which denotes the person or persons directly or indirectly affected by the alleged violation at issue (ibid.). 83. As to the Government’s argument that the houses of the fifth, thirteenth, fourteenth and nineteenth applicants had not been examined by the police – which, in the Government’s opinion, signified that those houses had not been damaged – the Court is unable to perceive any specific basis for this conclusion in the domestic investigation material made available to it. Moreover, as far as fifth and thirteenth applicants are concerned, this argument would appear to contradict the formal decision of the domestic authorities to grant them the status of aggrieved parties. 84. Given that the Government did not submit specific evidence – in particular any reasoned domestic decision – to rebut the applicants’ account that they had been displaced from their homes and that their homes had been damaged in the course of the events of 7 to 10 September 2002, the Court considers that all the applicants, except the sixteenth, can claim to be victims of the violations of the Convention alleged by them. 85. As far as the sixteenth applicant is concerned, the Court notes that she has not submitted any evidence (beyond the applicants’ own assertion) to show that she was affected by the events in issue in the present application. She was granted no formal status at the domestic level and her name was not mentioned either in the Romani Zbora NGO’s complaint of 27 February 2005 (see paragraph 36 above) or in the lawyer’s complaints concerning the failure to recognise some of the other applicants as aggrieved parties (see paragraph 50 above). Therefore, the sixteenth applicant has not laid out an arguable case that she is a victim of the alleged violations of the Convention. 86. Therefore the Court, upholding the Government’s objection, considers that the application has to be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention, in so far as it concerns the sixteenth applicant. 87. Accordingly, in the following discussion, unless otherwise specified, the first to fifteenth and eighteenth to nineteenth applicants are collectively referred to as “the applicants”. C. Question of an abuse of the right of individual application 88. The Government did not consider the letter of 13 July 2009 addressed to Mr Stoyanov and indicating that the investigation had been renewed briefly in 2009, which the applicants had submitted (see paragraph 44 above), to be genuine. In particular it did not bear the appropriate police letterhead, did not bear the appropriate stamp, and was in Russian (even though normally it should have been in Ukrainian), and no record of it having been sent could be found in the district police department’s register of outgoing correspondence. The letter, therefore, appeared to have been forged. The Government accordingly invited the Court to consider the production of that letter to constitute abuse of the right of application and to reject the application on that ground. 89. The applicants insisted that the letter of 13 July 2009 was genuine. The fact that it was in Russian was not unusual since that language was widely used in the region. It bore a letterhead and a stamp. They provided a written statement from their representative Mr Stoyanov confirming that the letter was genuine. According to him, he had also visited Ivanivka police station on 7 November 2016 and the registrar there had confirmed to him that the 2009 letter had indeed been sent. The applicants also provided a new letter dated 21 October 2016 and signed by the deputy head of the investigation department at Ivanivka police station and confirming, in essence, that the 2009 letter was genuine. 90. As to the letter of 21 October 2016, the Government submitted that the police were investigating the circumstances under which it had been issued. Moreover, the grounds for the issuance of this letter were doubtful since the police department’s register of outgoing correspondence had been stored for five years and then destroyed in 2014, so it was impossible to verify whether the letter of 13 July 2009 had been issued. 91. On the basis of the material in its possession, the Court is unable to conclude that the letter of 13 July 2009 was forged and that the applicants committed an abuse. In fact, the key objection to its genuineness raised by the Government – namely that it could not be found in the police department’s register of outgoing correspondence – appears to contradict the Government’s own submission that that register had been destroyed in 2014 before this application was communicated (compare paragraphs 88 and 90 above). Moreover, the issuance of that 2009 letter was reconfirmed by the police as recently as 21 October 2016, after the Government had submitted their observations. Accordingly, this objection must be rejected. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 92. The applicants complained under Article 3 of the Convention that the attack on their houses and their destruction had amounted to inhuman and degrading treatment, for which the State was responsible on the grounds that the authorities had been complicit in the attack and had failed to protect them from it and to investigate it effectively. They furthermore argued that the State was responsible for the degrading living conditions that they had experienced following their displacement. In addition, they complained that on account of the above they had suffered discrimination owing to their Roma ethnic origin, contrary to Article 14, taken in conjunction with Article 3. 93. The invoked provisions read: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Two groups of applicants 94. In examining the above complaints the Court finds it appropriate to distinguish between two groups of applicants: Group I applicants – applicants who were present in the village in the run-up to the attack of the night of 9-10 September 2002 and had to flee their homes in the village under the threat of that attack – namely, the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants; Group II applicants – the applicants who, by their own admission, were away from their homes at the time of the events in question (see the Appendix for references to the relevant statements), and so had no knowledge of the imminent attack, having only learned about the damage done to them afterwards – namely the first, fourth, fifth, tenth and twelfth applicants. B. Group I applicants 1. Admissibility (a) Exhaustion of domestic remedies (i) The parties’ submissions 95. In the Government’s opinion, the applicants should have realised that the criminal investigation was incapable of establishing with sufficient clarity any given person’s criminal responsibility for violence committed by a mob. Instead, a claim for damages against the local council or the police department was the only effective remedy available to them. In fact, the applicants had lodged a claim for damages against the council on 23 December 2005 seeking damages in respect of their expulsion (see paragraph 46 above). By using this remedy they had forfeited the right to assert that it had not been effective. However, they had then failed to appeal against the first-instance court’s decision dismissing their claim (see paragraph 47 above). They had also failed to lodge an administrative claim for damages against the police. The Government provided examples of the domestic courts’ case-law according to which such claims for damages could be considered effective. 96. The Government also pointed out that the applicants had failed to challenge before a more senior prosecutor the decisions to suspend criminal proceedings. 97. The applicants pointed out that the Court had found violations of the Convention where States had failed to conduct an effective criminal investigation into mob violence (see Ouranio Toxo and Others v. Greece, no. 74989/01, § 43, ECHR 2005 ‑ X (extracts); Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 124, 3 May 2007; and Identoba and Others v. Georgia, no. 73235/12, §§ 75-78, 12 May 2015). For them, this was a clear indication that they could have expected an effective criminal investigation into the attack. They had sought to initiate such a criminal investigation and had thus complied with the requirement to exhaust domestic remedies. It had only been after it had become clear that the investigation was ineffective that they had applied to the Court. (ii) The Court’s assessment 98. The relevant principles of the Court’s case-law concerning the rule of exhaustion of domestic remedies are set out in Mocanu and Others v. Romania, [GC], nos. 10865/09 and 2 others, §§ 120-127, ECHR 2014 (extracts). 99. In response to the Government’s submission that the applicants had to lodge civil claims for damages, the Court observes that, in fact, a criminal investigation was initiated in connection with the attack on the applicants’ houses, and the applicants played an active role in it (see paragraphs 30 ‑ 44 above and 109 below). Accordingly, the applicants made use of a domestic remedy which, according to the Court’s case-law, constitutes an effective domestic remedy for such complaints (see, for example, M.C. and A.C. v. Romania, no. 12060/12, § 61, 12 April 2016). Since the investigation concerned the attack in general, its outcome was important for all applicants, regardless of whether or not they had been granted formal status in the domestic proceedings (see, mutatis mutandis, D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 120-22, ECHR 2007 ‑ IV). 100. As to the Government’s argument that the applicants could have appealed to a more senior prosecutor against the decision to suspend the investigation, the Court notes that the applicants’ representatives did in fact raise arguments before the Prosecutor General questioning the validity of the suspension – namely the failure to identify the perpetrators; and the regional prosecutor’s office examined that complaint on the merits, having left in force the decision to suspend the investigation (see paragraphs 38 and 39 above). Given that the applicants did not have access to the case file (see paragraph 43 above), the Court is not convinced that they could have presented more detailed arguments in this respect (compare Betayev and Betayeva v. Russia, no. 37315/03, § 89, 29 May 2008). 101. In the light of the foregoing, the Court considers that the application cannot be rejected for failure to exhaust domestic remedies. The Government’s objection must therefore be dismissed. (b) Compliance with the six-month rule (i) The parties’ submissions 102. The Government submitted that the applicants’ complaints had been lodged outside of the six-month period. They presented two arguments in this respect. 103. Firstly, the Government argued that the criminal proceedings instituted in respect of the attack had been definitively suspended on 5 April 2006; this decision had been notified to the applicants on 25 September 2008 at the latest, and the investigation had remained dormant ever since. The Government did not consider as genuine the letter of 13 July 2009 addressed to Mr Stoyanov and indicating that the investigation had been renewed briefly in 2009 (see paragraphs 44 and 91 above). Moreover, in the applicants’ claim lodged in 2007 with the administrative court the applicants had stated that they already considered the investigation to be ineffective. Thus, the applicants must have realised at the very latest by 25 September 2008 that the criminal investigation was ineffective and should then have applied to the Court. However, the applicants had actually applied to the Court more than six months after that date. 104. Secondly, the Government also argued that the village council’s decision concerning the expulsion of the Roma from the village had been quashed with effect from 21 April 2003, when the domestic court’s judgment of 21 March 2003 (see paragraph 45 above) had become final and enforceable. Accordingly, the council’s decisions “could not serve as the basis for any actions” as of the former date. The applicants had lodged their application more than six years after that date. 105. Referring to the Court’s judgment in Chiragov and Others v. Armenia ([GC], no. 13216/05, § 137, ECHR 2015), the applicants submitted that the requirement for applicants to display due diligence in pursuing their claims was less pressing in cases concerning loss of property than in cases concerning violent loss of life, given that in the former the evidence was less likely to deteriorate over time. They referred to their arguments concerning the letter of 13 July 2009, which indicated that the investigation had been restarted in 2009 (see paragraphs 44 and 89 above). (ii) The Court’s assessment 106. The relevant principles of the Court’s case-law concerning the six-month rule period are set out in Mocanu and Others (cited above, §§ 259 ‑ 66). In accordance with those principles in cases concerning an investigation into ill-treatment, applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (ibid., § 263). That obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, applicants must contact the domestic authorities promptly concerning progress in the investigation in question – which implies the need to complain to them in a diligent manner, since any delay risks compromising the effectiveness of the investigation; on the other hand, they must lodge their application with the Court promptly as soon as they become aware or should have become aware that the investigation is not effective (ibid., § 264). 107. The Court agrees with the Government that had the applicants complained about the village council’s resolution of 9 September 2002 as such, it would have had to hold that such a complaint had been lodged outside the six-month period. The Court considers, however, that the applicants referred to the village council’s resolution as mere evidence of the authorities’ implication in the attack on their homes which was the subject of the subsequent criminal investigation. 108. As far as the criminal investigation and the applicants’ compliance with the obligation of diligence in that respect are concerned, the Court notes that the applicants’ compliance with the first aspect of that obligation is not contested (see paragraph 95 above). 109. As to the second aspect (see paragraph 106 in fine above), the Court notes that throughout the investigation the applicants maintained regular contact with the authorities, displaying active interest in the proceedings (compare M.C. and A.C. v. Romania, cited above, § 78; also contrast Narin v. Turkey, no. 18907/02, § 46, 15 December 2009, and Frandeş v. Romania (dec.), no. 35802/05, § 21, 17 May 2011). The suspension of proceedings was neither triggered nor influenced in any manner by the applicants’ activity or lack thereof (see M.C. and A.C. v. Romania, cited above, § 75). 110. Following its initial suspension in 2003, the criminal investigation was briefly renewed in 2006 (see paragraphs 35 and 41 above). Moreover, the applicants were assured that measures to identify the perpetrators were ongoing even in the period during which the formal investigation was suspended (see paragraph 37 above). Given the secrecy which characterised this stage of the proceedings, it was reasonable for the applicants to put their trust in such assurances (ibid., § 77; see also paragraph 56 above). Finally, on 13 July 2009 – that is to say less than six month before this application was lodged with the Court – the applicants were informed that the investigation had again been renewed (see paragraph 44 above). As the Court found above, it has no sufficient grounds to doubt that the letter in question is genuine (see paragraph 91 above). 111. Under such circumstances the Court cannot fault the applicants for having put their trust in the system (ibid., § 77), giving the authorities the benefit of the doubt and awaiting further progress before applying to the Court, so long as there was a realistic possibility, on the basis of the information the applicants were receiving from the authorities, that the investigative measures could be advancing (compare Mocanu and Others, cited above, § 280). 112. In the light of the foregoing, the Court considers that the application has not been lodged out of time. The Government’s objection must therefore be dismissed. (c) Conclusion as to admissibility 113. The Court accordingly concludes that the complaints of the Group I applicants under Article 3 of the Convention (taken both alone and in conjunction with Article 14 of the Convention) are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring them inadmissible have been established. They must therefore be declared admissible. 2. Merits (a) The parties’ submissions 114. The applicants maintained that there had been a violation of Article 3 on account of the authorities’ acquiescence in the attack (most notably on the part of the village council and of the police), their failure to prevent and effectively investigate it, and the applicants’ degrading post ‑ displacement living conditions. 115. The applicants submitted that the village council’s resolution had constituted incitement to violence. In this respect they referred to Ouranio Toxo and Others (cited above, § 42). The applicants may not have feared for their lives upon returning to inspect their properties but it would be unreasonable to expect them to continue living in a place where the only protection they could expect was advance warning to flee. The fact that most of the applicants had not witnessed the attack on their homes did not preclude the applicability of Article 3, since – according to the Court’s judgment in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 249-64, ECHR 2011) – Article 3 could be engaged in the event that members of a particularly vulnerable group were made homeless in aggravated circumstances. 116. The Government submitted that the threshold of severity required to bring Article 3 into play had not been reached. Relying, in particular, on the Court’s judgments in Selçuk and Asker v. Turkey (24 April 1998, § 77, Reports of Judgments and Decisions 1998 ‑ II), and Ayder and Others v. Turkey (no. 23656/94, § 109, 8 January 2004), they argued that according to the Court’s case-law two factors were decisive for the triggering of the application of Article 3 in respect of the destruction of a home, namely (i) the factor of surprise and (ii) the applicant personally observing the destruction of his or her home. Neither of those had been present in the instant case since the Roma (i) had been warned by the village mayor and the police of the possibility of a pogrom, and (ii) had left; moreover, none of them had observed the attack. This also applied to the ninth applicant, who had not mentioned in her early statements that she had personally witnessed the attack (see paragraph 18 above). 117. There was no evidence that the authorities had instigated, the less so carried out, the destruction of the applicants’ property. On the contrary, the village mayor and police officers had warned the applicants of the possible pogrom and had asked them to leave their houses. Apparently there had been some police officers present during the “pogrom”, but there was no evidence that they instigated the violence, let alone participated in it. It appears that the police first contained the mob and then, when it became feasible, dispersed it. The local council’s decision regarding expulsion was quickly quashed. In short, there was no evidence that expulsion of the applicants had been part of State policy (see also paragraph 154 below). 118. Neither was there evidence that the applicants’ houses had been burned, which had been a factor in finding a violation in the cases of Selçuk and Asker and Ayder (both cited above) and Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, ECHR 2005 ‑ VII (extracts)). Only the home of the first applicant had burned down and there was no conclusive evidence that this had been due to arson rather than to an accident (see paragraph 12 above). The other homes were damaged but not destroyed, as evidenced by the fact that the applicants and other Roma residents had been able to visit their homes and to sell them afterwards. The applicants had not provided evidence concerning either the exact extent of damage to their homes or of the allegedly harsh living conditions they had experienced following their displacement. (b) The Court’s assessment (i) Relevant general principles (α) Attribution of responsibility 119. A Contracting State will be responsible under the Convention for violations of human rights caused by acts of its agents carried out in the performance of their duties (see, for example, V.K. v. Russia, no. 68059/13, § 174, 7 March 2017). However, a State may also be held responsible even where its agents are acting ultra vires or contrary to instructions (see Moldovan and Others, cited above, § 94). The acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may also engage that State’s responsibility under the Convention (see Cyprus v. Turkey [GC], no. 25781/94, § 81, ECHR 2001 ‑ IV). (β) Minimum level of severity 120. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Further factors include the purpose for which the ill ‑ treatment was inflicted, together with the intention or motivation behind it, although the absence of any intention to humiliate or debase the victim cannot conclusively rule out the finding of a violation of Article 3. Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual ‑ showing a lack of respect for or diminishing his or her human dignity – or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see Bouyid v. Belgium ([GC], no. 23380/09, §§ 86 and 87, ECHR 2015, with further references therein). 121. It should also be emphasised that Article 3 cannot be limited to acts of physical ill-treatment; it also covers the infliction of psychological suffering (see R.B. v. Hungary, no. 64602/12, § 45, 12 April 2016). The Court has thus held that a mere threat of torture can constitute inhuman treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 108, ECHR 2010). The Court has reached the same conclusion in respect of a fear of future assaults where there had already been a history of domestic violence (see Eremia v. the Republic of Moldova, no. 3564/11, § 54, 28 May 2013). The Court also found Article 3 to be applicable in a case where armed and masked police officers had entered the applicants’ home (where an infant had been present), pointed guns at the applicants and shouted death threats (see Hristovi v. Bulgaria, no. 42697/05, § 80, 11 October 2011). In East African Asians v. United Kingdom (Commission’s report of 14 December 1973, Decisions and Reports 78-A, p. 62, § 207) the European Commission on Human Rights considered the meaning of degrading treatment under Article 3 of the Convention and stated that “treatment of an individual may be said to be “degrading” in the sense of Article 3 “if it grossly humiliates him before others or drives him to act against his will or conscience” (paragraph 195 of the Commission’s opinion). It further held that “... discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention. ...[P]ublicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity...” ( ibid ., paragraph 207). 122. Not every form of threatening behaviour, however, even if it involves a large group of individuals, will bring Article 3 into play (see, for example, Karaahmed v. Bulgaria, no. 30587/13, §§ 74-77, 24 February 2015, which involved mostly verbal intimidation of Muslim worshippers by a crowd of protesters), even though where threats reach a certain level of seriousness and target victims as members of a particular ethnic or racial group, they may bring Article 8 into play (see Király and Dömötör v. Hungary, no. 10851/13, § 43, 17 January 2017, where the applicants, Roma residents of a village, were in their houses and had to observe a threatening demonstration, which involved anti-Roma speeches and the throwing of objects at their houses, and which was overseen and contained but not dispersed by the police). 123. The Court has further held that in the event of threatening actions on the part of third parties, a significant police presence protecting the applicants has a role in attenuating its effect so as to make Article 3 inapplicable while Article 8 was still engaged (see R.B. v. Hungary, cited above, §§ 51 and 52). By contrast, in Identoba and Others (cited above, § 70), the Court, in categorising the treatment suffered by the applicants at the hands of private protestors as falling within the ambit of Article 3, found relevant the inadequacy of police protection provided to the applicants. In a different context, the Court, in finding the treatment suffered by applicants to be contrary to Article 3 and even to constitute torture, found it relevant that they had been detained in a place where there had been no rule of law (“ zone de non-droit ”) and the most elementary guarantees of rights had been suspended and where, therefore, they had had no protection from abuse (see Azzolina and Others v. Italy (nos. 28923/09 and 67599/10, §§ 134 and 137, 26 October 2017). (γ) Positive obligations 124. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. This positive obligation to protect is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every risk of ill-treatment could entail for the authorities a Convention requirement to take measures to prevent that risk from materialising. However, the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill ‑ treatment of which the authorities had or ought to have had knowledge (see O’Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts)). 125. Furthermore, Article 3 requires that the authorities conduct an effective official investigation into the alleged ill ‑ treatment, even if such treatment has been inflicted by private individuals (see T.M. and C.M. v. the Republic of Moldova, no. 26608/11, § 38, 28 January 2014). 126. An investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or for use as the basis of their decisions. They must take all reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 183 and 184, ECHR 2012, with further reference therein). 127. Generally speaking, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent of those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence. Whatever mode is employed, the authorities must act of their own motion. In addition, in order to be effective the investigation must be capable of leading to the identification and punishment of those responsible. It should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used force but also all the surrounding circumstances. Although this is not an obligation of results to be achieved but of means to be employed, any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the required standard of effectiveness (see Bouyid, cited above, §§ 118-20). 128. When investigating violent incidents such as acts of ill ‑ treatment, State authorities have a duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events at hand. Proving racial motivation will admittedly often be difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use its best endeavours and is not absolute. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially motivated violence (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII). Treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Identoba and Others, cited above, § 67). (ii) Application of the above-mentioned principles to the present case (α) Substantive aspect of Article 3, taken in conjunction with Article 14 129. The Court considers it necessary, at this juncture, to (i) comment on the motives behind the attack on the applicants’ homes and (ii) to assess the authorities’ role in the applicants’ displacement. 130. As to the former matter, it is sufficient for the Court to note that it has never been substantively in dispute either domestically or before this Court that the attack on the applicants’ houses was motivated by anti-Roma sentiment among the villagers. Admittedly, the mob appears to have been motivated in part by desire for revenge against the families of those involved in the murder which had triggered the events (compare Fedorchenko and Lozenko v. Ukraine, no. 387/03, § 68, 20 September 2012, where Roma houses were burned in an attack allegedly targeting houses of drug dealers). 131. As to the role of the authorities in respect of the attack, it appears that not only local police in the village but also police at the district level knew about the pogrom being prepared sufficiently ahead of time to call Roma residents to a meeting and to warn them to leave (see paragraph 29 above). That being so, there is no information as to why they did not intervene to protect the applicants’ homes. In particular, it has not been argued in any of the domestic decisions that the violence erupted so abruptly or so overwhelmed the police resources as to justify a decision to limit police intervention and merely attempt to minimise the damage by advising the applicants to flee (contrast Király and Dömötör, cited above, §§ 63-69, and P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, §§ 40-47, 23 November 2010). 132. The case-file material shows that State agents explicitly urged the applicants to leave the village because they were either unwilling or considered themselves unable to protect them from mob violence. The Court also considers it established that police officers were present at the ransacking of the applicants’ houses but made no intervention worthy of note. This presence, coupled with the decision of the village council of 9 September 2002 appearing to endorse the expulsion of “socially dangerous individuals” from the village (see paragraph 11 above), created the appearance of official approval for the attackers’ actions. 133. While it is a positive fact that the council’s decision was quashed several months later (see paragraph 45 above), this is immaterial for the assessment of the gravity of the attack and its impact on the applicants at the time that it occurred and in its immediate aftermath. Also, while the council’s decision of 9 September 2002 did not refer to the ethnicity of individuals to be expelled, there could be no doubt, given the context and its previous decision of 8 September 2002, that Roma residents were targeted by it. 134. Therefore, the applicants who had been warned about the attack were put in a situation where they had to conclude that, because of their family relations and their ethnicity, they could not count on the protection of the law in the place where they had lived in regular accommodation for a substantial period of time (see the Appendix). The decision to leave their homes before the attack was thus not a result of the exercise of their free will but their way of protecting their physical integrity. Their feelings of fear, anguish, helplessness and inferiority were further exacerbated by understanding that their homes would likely be plundered, but that they were unable to protect them without putting their lives at risk. All in all, it grossly diminished their dignity. The Court concludes that the role of the police, which chose not to protect the applicants but advise them to leave before the “pogrom” (see paragraph 12 above) – and the fact that those events involved the invasion and ransacking of the applicants’ homes by a large mob that was driven by sentiment aimed at them as Roma (that is to say members of a vulnerable group) – was such as to constitute an affront to the applicants’ dignity sufficiently serious as to be categorised as “degrading” treatment. This assessment renders it unnecessary for the Court to resolve the dispute between the parties as to whether the ninth applicant was at home at the time of the attack and had to confront the attackers (see paragraph 18 above). 135. The Court, accordingly, does not agree with the Government’s assessment (see paragraph 118 above) that for Article 3 to be found applicable within the context of damage to property it is essential for the applicants to have watched his or her house being destroyed. The relevance of the presence or absence of any given circumstance should not be taken in isolation but should rather be seen in the context of all the circumstances of the case (see, mutatis mutandis, Gäfgen, cited above, § 88). In view of the above findings, the Court does not find this factor decisive in the present case. 136. As follows from the above discussion, the Court considers it established that: (i) the attack on the applicants’ homes was motivated by anti-Roma sentiment; (ii) the police failed to take any measures to protect the applicants’ homes from the attack and no objective reason was given for their inaction; (iii) the village council’s resolution and in particular the police presence and passivity at the scene of the attack created an appearance of official endorsement for the attack; and (iv) the attack constituted degrading treatment, in particular on account of the attitude of the authorities. 137. There has, accordingly, been a violation of the substantive aspect of Article 3, taken together with Article 14 of the Convention, in respect of the Group I applicants. (β) Procedural aspect of Article 3, taken in conjunction with Article 14 138. The Court notes that the domestic investigation into the attack was characterised by a number of serious omissions. 139. To start with, the Court notes that there was abundant evidence before the investigating authorities that the local authorities, including the local police, knew that the attack was being prepared, did not take any steps to prevent it and stood by as it unfolded, apparently limiting themselves to avoiding human casualties (see, for example, the police officers’ statements in paragraph 31 above). However, no steps whatsoever were apparently taken to investigate this aspect of the case. To cite but one example, the offence which was being investigated, hooliganism (that is unmotivated violence), did not appear to cover any involvement of the State actors in the events, although there were other provisions in the Criminal Code of Ukraine which could have constituted a more appropriate ground for launching a criminal investigation into the events (see, for example, Articles 365 and 367 of the Criminal Code, paragraph 52 above, and compare Identoba and Others, cited above, § 76). 140. Moreover, despite the presence of abundant information indicating that the local police and the mayor knew about the attack being prepared (see, for example, paragraphs 13 and 29 above), no effort was made to clarify how much and when they knew, what the source of their information was, whether they knew any organisers of the attack, whether they were in contact with them, and why they limited their role to warning the applicants to leave rather than taking any steps to avert the attack. 141. The Court also notes that the local police, who clearly played a role in the events being investigated, took an active part in the investigation itself. Thus, the district police played an active role in the examination of the damaged houses and collecting statements in the early stage of the investigation (see paragraphs 23 and 26 above) and then had formal control over the investigation after its active phase was over and it had been suspended (see paragraph 41 above). It is true that the person in charge of the key, active part of the investigation was a senior investigator of the regional police. However, that investigator was assisted by a team which included officers from the local police (see paragraph 24 above). 142. Circumscribing the investigation in such a fashion and the failure to explore such a clearly required line of inquiry – apparently without reasonable justification – indicates not only inadequacy and lack of thoroughness in the investigation (compare Identoba and Others, cited above, § 75) but also a lack of independence (see, mutatis mutandis, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 222, 14 April 2015). 143. Even leaving aside the role of the authorities in the events, the steps taken to identify perpetrators who were private individuals were also insufficient. Of three individuals specifically identified as instigators of the pogrom – O.M., P.M. and I.D. (see paragraph 36 above) – apparently only two – O.M. and P.M. – were questioned. According to the summary of their statements provided by the Government, they denied any personal involvement in the attacks on the Roma houses. However, there is no indication as to whether they were questioned about their alleged role in the instigation of the attacks. Moreover, it appears that while witnesses uniformly denied that they had personally taken part in the attack on Roma houses, it appears that no witnesses – not even O.M. and P.M. – were questioned as to whether they knew any of the attackers. This is particularly striking in the case of the police officers who were present on the scene and who personally observed the attack and the attackers (see paragraph 31 above). 144. Lastly, despite clear evidence to the effect that the attack targeted members of a specific ethnic group, it was investigated as an ordinary disturbance, and the relevant provision of the Criminal Code – which is specifically aimed at supressing violence based on racial and other prejudice (Article 161 of the Code, paragraph 52 above) – was never invoked. Even considering the hooliganism offence, the only one invoked by the authorities, no attention was apparently given to anti-Roma prejudice as a possible aggravating circumstance (see Article 67 of the Criminal Code, at paragraph 52 above). In short, there is no evidence that the authorities have conducted any investigation into anti-Roma prejudice as a likely motive of the crime (compare Fedorchenko and Lozenko, cited above, § 69). 145. The above findings in this particular case should also be seen against the background of international reports describing a pattern of persistent anti-Roma prejudice, in particular on the part of certain law-enforcement officers, in Ukraine (see paragraphs 59-62 above; see also Fedorchenko and Lozenko, cited above – in particular §§ 33 and 68). 146. The above-mentioned considerations are sufficient for the Court to find that the investigation into the incident cannot be considered as having been effective. 147. There has, accordingly, been a violation of the procedural aspect of Article 3, taken in conjunction with Article 14, in respect of the Group I applicants. (γ) Remaining complaints 148. In view of its findings above, the Court considers that it is not necessary to examine the remaining aspects of the Group I applicants’ complaints under Article 3 of the Convention, either taken alone or in conjunction with Article 14, because those aspects are subsumed by the already examined complaints under those provisions. C. Group II applicants Admissibility 149. The Group II applicants (see paragraph 94 above and the Appendix) were, by their own admission, away from their homes at the time of the events in question and so had no knowledge of the imminent attack and were not prompted to flee their homes, having only learned about the damage done to them afterwards (see, mutatis mutandis, Kolyadenko and Others v. Russia, nos. 17423/05 and 5 others, § 152, 28 February 2012). Having regard to its analysis and conclusions above concerning the Group I applicants, the Court finds that the situation of the Group II applicants does not fall within the ambit of Article 3 and can be sufficiently addressed under Article 8 of the Convention (see below). 150. It follows that the first, fourth, fifth, tenth and twelfth applicants’ complaints under Article 3, taken alone or in conjunction with Article 14, are incompatible with the Convention ratione materiae and should be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 151. Under Article 8 of the Convention the applicants (both Groups I and II) complained that the respondent State had been responsible for the attack on their homes, had failed to protect them from it and to investigate it effectively and that the State was responsible for the inadequate living conditions that they had experienced following their displacement. They also complained that on account of the above they had suffered discrimination owning to their Roma origin, contrary to Article 14, taken in conjunction with Article 8. 152. Article 8 of the Convention reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions 1. The Government 153. On the basis of the same arguments as those presented in respect of the Article 3 complaints, the Government argued that the applicants had failed to exhaust the available domestic remedies and to comply with the six-month rule (see paragraphs 95, 96, 103 and 104 above). The applicants disagreed. 154. The Government furthermore submitted that there was no evidence that the removal of the Roma from the village had been part of the State’s policy. In particular, the village council’s resolution had been adopted under pressure from the mob and had then immediately been challenged by the prosecutor and quashed, so it had in no way reflected State policy. There was no evidence of any threat to the Roma in the village after 9 September 2002, even though a certain resentment towards them might still remain. Many of them had been able to safely return and reside in their houses until they had sold them. They had not provided sufficient proof that they had sold their houses for less than their market price or that the proceeds had been insufficient to obtain new housing elsewhere. The Government considered this factor, together with the fact that they had been able to sell and move, decisive in the assessment of the applicants’ Article 8 complaint. In this respect they compared the Court’s findings in (i) Fadeyeva v. Russia (no. 55723/00, § 121, ECHR 2005 ‑ IV) (where the applicant was unable to move and this was a factor in finding of a violation) and (ii) Hatton and Others v. the United Kingdom ([GC], no. 36022/97, § 127, ECHR 2003 ‑ VIII) (where the house prices in the applicants’ area and, accordingly, their ability to move, were not affected by aircraft noise). In the Government’s opinion, that case-law was relevant because the applicants in the present case had essentially exercised their right to relocate from an environment (in the village) that they had found oppressive. Furthermore, there was no evidence that the applicants’ living conditions had deteriorated after they had moved from the village, and nor had they sought any help in improving them. 155. Accordingly, the Government considered that the applicants’ complaint was manifestly ill-founded and, alternatively, that there had been no violation of the provisions invoked by the applicants. 2. The applicants 156. The applicants considered that the fact that the village council resolution had been adopted under the pressure of the mob did not rule out State responsibility. They cited in this respect the case of Sampanis and Others v. Greece (no. 32526/05, §§ 82-83, 5 June 2008), where non-Roma parents’ violent opposition to the enrolment of Roma children in school did not dispense the State of the responsibility to ensure equal study conditions for those children. 157. The fact that some of the applicants had been reduced to living in their destroyed homes while they worked out what to do in no way diminished the fact that they should not have been expected to remain in their homes in such conditions. The comparison made by the Government between the applicants’ situation and a mere decline in house prices showed a continuing failure to grasp the seriousness of the trauma they had suffered. B. The Court’s assessment 1. Admissibility 158. Above, the Court has examined and dismissed the Government’s objections related to the exhaustion of domestic remedies and compliance with the six-month rule. It considers that those objections should likewise be dismissed as far as they relate to the applicants’ complaints under Article 8, taken alone and in conjunction with Article 14. 159. Moreover, contrary to the Government’s submissions, the above-mentioned complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) Relevant general principles 160. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, judgment of 26 March 1985, § 23, Series A no. 91). 161. Furthermore, the Court has not excluded the possibility that the State’s positive obligation under Article 8 to safeguard an individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Moldovan and Others, cited above, § 96, which cites Osman v. the United Kingdom, judgment of 28 October 1998, § 128 Reports 1998-VIII). 162. Whether a case be analysed in terms of (i) a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or (ii) an “interference by a public authority” to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, § 41, Series A no. 172). 163. The Court has dealt with cases of harassment motivated by racism which involved no physical violence. It found that the manner in which the criminal-law mechanisms had been implemented was a relevant factor for its assessment of whether the protection of the applicants’ rights had been defective to the point of constituting a violation of the respondent State’s positive obligations under Article 8 of the Convention (see Király and Dömötör, cited above, § 72). (b) Application of the above-mentioned principles to the present case 164. The Court has found it established that there were grave failures on the part of the domestic authorities to protect the Group I applicants from the attack on their homes, which led it to find a violation of Article 3, taken in conjunction with Article 14 of the Convention. 165. The same conclusions are also valid for the Group II applicants because the only difference between them and the former group was that they were absent from the village at the time of events of 7-10 September 2002 and only returned to the village later to find their homes damaged. That factor was decisive for the Court in finding that the level of seriousness needed to bring Article 3 into play was not reached in respect of those applicants. However, that does not prevent Article 8 from being engaged (see Wainwright v. the United Kingdom, no. 12350/04, § 43, ECHR 2006 ‑ X). 166. The Court finds it established that the homes of all applicants other than the sixteenth were targeted in the attack (see paragraph 84 above) and they suffered displacement from their homes as a result. 167. The Court is not convinced by the Government’s argument that the attack only led to the applicants being displaced for a brief period of time since they were able to return to the village afterwards and later freely chose to sell their houses and move. It acknowledges that in the present case, unlike in the case of Moldovan and Others (cited above, §§ 22, 25 and 26), there are no particular facts showing that the applicants were actively prevented from returning to the village. In fact, the applicants appear to implicitly admit that some of them were in fact able to return and live in their houses until they sold them. At the same time, the Court finds that it would have been unreasonable to expect the applicants to permanently live in damaged houses in a locality where the authorities had clearly communicated to them that they would have no protection against mob violence – particularly in circumstances where no investigation has been conducted and no person has been held responsible for the attack. 168. There can be no doubt, therefore, that the damage caused to the applicants’ houses constituted grave and unjustified interferences with the applicants’ right to respect for their private and family life and home. 169. The Court reiterates its findings above concerning: (i) the lack of any objective reason for the authorities’ failure to protect the applicants; (ii) the authorities’ role in the attack; (iii) the absence of an effective domestic investigation; and (iv) the general background of prejudice against Roma in Ukraine at the material time – in particular that manifested by certain law enforcement officers (see paragraphs 59-62 above). 170. Those considerations are sufficient for the Court to find that there has been a violation of Article 8, taken in conjunction with Article 14 of the Convention, on account of the role the authorities played prior to and in the course of the attack on the applicants’ homes and their failure to conduct an effective investigation into the attack. 171. In view of its findings above, the Court considers that it is not necessary to examine the remaining aspects of the applicants’ complaints under the aforementioned provisions of the Convention because those aspects are subsumed by the already examined complaints under those provisions. IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1, TAKEN ALONE AND IN CONJUCTION WITH ARTICLE 14 172. The applicants (both Groups I and II) complained of a violation of Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention on account of the damage done to their houses and the destruction of their household items. Article 1 of Protocol No. 1 reads: Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties’ submissions 173. On the basis of the same arguments as those presented in respect of the Article 3 and 8 complaints, the Government argued that the applicants had failed to exhaust the available domestic remedies and to comply with the six-month rule (see paragraphs 95, 96, 103, 104 and 153 above). The applicants disagreed. 174. The Government also submitted that the applicants had failed to substantiate their arguments. In this context they referred to the Court’s decision in Lisnyy and Others v. Ukraine and Russia ((dec.), nos. 5355/15, 44913/15 and 50853/15, 5 July 2016). The Government argued that the applicants’ explanation that they had supposedly lost their title documents owing to the attack on their homes was not convincing since (i) the applicants had been warned ahead of time of the attack, (ii) some houses had been sold (so it follows that the owners did have the relevant title documents), (iii) copies of title documents could be obtained from State registries and archives, and (iv) in their civil claims lodged in the criminal case some applicants claimed very specific amounts (suggesting that they must have had some documents on which to base those claims). Accordingly, the Government considered that the applicants’ complaint under Article 1 of Protocol No. 1 was manifestly ill-founded. 175. The applicants disagreed with the Government concerning the degree of damage to their homes, relying on photographs that they provided (see paragraph 15 above) and their own statements. They considered a comparison with the Lisnyy and Others case misguided since, unlike in that case, the very fact that their homes had been damaged was not in dispute; it was only the extent of that damage that was in dispute. Moreover, they belonged to a particularly vulnerable group by virtue of their Roma ethnicity and being in a situation tantamount to that of internally displaced persons. Referring in particular to the statements of the thirteenth and sixteenth applicants (see paragraph 14 above), they stated that only “some” of them had sold their houses for “a small amount of money”. They considered that it was for the Government to search the registers and archives for proof of the applicants’ ownership. They furthermore considered the Government’s conclusion (that their complaint was manifestly ill-founded for lack of proof) to have been based on racist stereotypes about the Roma as being rootless. B. The Court’s assessment 176. The Court notes that the Government also raised objections as to the applicants’ failure to exhaust domestic remedies and to comply with the six-month rule. However, it does not consider it necessary to examine these objections, given that this part of the application is, in any event, inadmissible for the following reasons. 177. The Court notes that the applicants have failed to provide any evidence in support of their claims (see Lisnyy and Others (dec.), cited above, §§ 28-32, and contrast Kerimova and Others v. Russia, nos. 17170/04 and 5 others, §§ 292-93, 3 May 2011). The applicants have not refuted the Government’s submission, supported by statements by some of the applicants made in the domestic proceedings (see paragraph 14 above), that the former Roma residents of Petrivka were able to sell their homes in that village after the attack, strongly suggesting that they had had proof of title. 178. However, the applicants did not provide any details of those deals or any relevant documentation. Neither have they provided detailed descriptions of the property they lost, including the houses and the household items, or specified which of the applicants were the owners. They did not refer to any specific efforts by them or their representatives to obtain evidence from any public records which may remain available even if the Court is prepared to accept their assertion that their documents were lost as a result of their displacement. The latter also concerns the first applicant. It is true that it is undisputed that the house where he used to live was seriously damaged by fire (see paragraph 118 above) and so likely could not be sold. However, it remains the case that he has not provided any evidence of the title or any effort to obtain such evidence from public records, or even a detailed description of his property. 179. In such circumstances the Court considers that the applicants have failed to develop and substantiate their complaint or to provide a cogent explanation for their inability to do so. Accordingly, their complaint under Article 14, taken in conjunction with Article 1 of Protocol No. 1 is likewise unsubstantiated. 180. The Court concludes that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 181. The applicants complained that they had no effective remedy in respect of their other complaints. They relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 182. The Government contested that argument. 183. The Court, having declared inadmissible certain complaints under Article 3 and Article 1 of Protocol No. 1 (taken alone and in conjunction with Article 14, see paragraphs 150 and 180 above) concludes that there is no arguable claim for the purposes of Article 13 in respect of those complaints (see, for example, Valeriy Fuklev v. Ukraine, no. 6318/03, § 98, 16 January 2014); therefore, the complaint under Article 13 in that part must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4. 184. The remainder of the complaint under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. 185. However, in view of its findings above, the Court does not find it necessary to examine it separately because it is subsumed by the already examined complaints under Articles 3 and 8 of the Convention (see, mutatis mutandis, Sergey Savenko v. Ukraine, no. 59731/09, § 48, 24 October 2013). VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 186. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 187. The first three, the fifth to fifteenth, the eighteenth and nineteenth applicants claimed 85,984.52 euros (EUR) each in respect of non-pecuniary damage. Their claims in respect of pecuniary damage are set out in the Appendix. The fourth applicant claimed EUR 36,684 for non-pecuniary damage but submitted no claim for pecuniary damage. 188. The Government considered that there was no causal link between the damage claimed and the violations found. In any event they considered the claims excessive. 189. In view of its findings above concerning the applicants’ complaint under Article 1 of Protocol No. 1, the Court rejects the applicants’ claim in respect of pecuniary damage. On the other hand, ruling on an equitable basis, the Court considers it reasonable to award the following amounts in respect of non-pecuniary damage: (i) EUR 11,000 to the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants each, plus any tax that may be chargeable on those amounts; and (ii) EUR 9,000 to the first, fourth, fifth, tenth and twelfth applicants each, plus any tax that may be chargeable on those amounts. B. Costs and expenses 190. The applicants made no claim for costs and expenses. Accordingly, the Court makes no award under this head. C. Default interest 191. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for home) of the Convention, taken in conjunction with Article 14 (prohibition of discrimination). It also held, with respect to the applicants who had been at home at the time of the events in question, that there had been two violations of Article 3 (prohibition of inhuman or degrading treatment/lack of effective investigation) of the Convention, taken in conjunction with Article 14. The Court noted in particular that the role of the police, who had chosen not to protect the applicants but had advised them to leave before the pogrom – and the fact that those events had involved the invasion and ransacking of the applicants’ homes by a large mob that was driven by sentiment aimed at them as Roma – was such as to constitute an affront to the applicants’ dignity sufficiently serious as to be categorised as degrading” treatment. Furthermore, despite clear evidence to the effect that the attack had targeted members of a specific ethnic group, it had been investigated as an ordinary disturbance, and there had been no evidence that the authorities had conducted any investigation into anti-Roma prejudice as a likely motive of the crime. |
1,049 | Service of a military character or substitute civilian service | THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 § 2 OF THE CONVENTION 53. The applicant submitted that the requirement imposed on him by domestic law to remain in the armed forces for what he considered a very lengthy period or to pay an excessively large fee to the State in return for ending his engagement constituted forced or compulsory labour, since it imposed a disproportionate burden and an unnecessary restriction on his freedom of employment. He relied on Article 4 § 2 of the Convention, which provides: “No one shall be required to perform forced or compulsory labour. ” 54. The Court considers it appropriate in the present case to refer in addition to the relevant parts of Article 4 § 3 : “3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include: ... (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; ” ... B. Merits 1. The parties’ submissions (a) The Government 68. The Government submitted that the situation complained of in the present case did not amount to forced labour within the meaning of Article 4 § 2 of the Convention. They contended that following the applicant’s studies at the military academy, his appointment to the rank of second lieutenant and his specialist training, he had freely undertaken to serve in the armed forces for a period of twelve years, plus a further five years. He had been aware of that obligation, which was expressly prescribed by law, since the relevant statutory provisions formed part of the legal framework governing the career of a military medical officer and he had even personally benefited from the procedures and privileges available within that framework. 69. The Government further submitted that the applicant’s allegation that he had been required to obtain a specialist qualification was unfounded. There was no such obligation to undertake specialist training, which was a matter of relevance solely to the applicant’s own career. He had taken part of his own free will in the competitive examination organised by the army for the recruitment of medical specialists; he had been afforded preferential treatment in that military medical officers were offered supernumerary positions as specialists; and he had benefited from the promotion opportunities available as a result of his specialist qualification (being promoted to the rank of colonel). The applicant had also had the opportunity – by virtue of Article 63 § 4 of Legislative Decree no. 1400/1973 on the status of officers of the armed forces, according to the Government – to practise medicine on a private basis. 70. In addition, the Government emphasised that the applicant had been offered a supernumerary position in order to obtain his specialist qualification, whereas civilian medical personnel had to wait for any vacancies to arise before being allocated a place, whether in order of merit or by drawing lots, when new posts were created. The applicant had thus acquired a specialist qualification without having to wait, complete any administrative formalities or incur any costs. Furthermore, throughout his specialist training he had received his salary as a military medical officer. 71. The Government further argued that the applicant was not complaining of a breach of the proportionality principle in his case and that the Court therefore had no jurisdiction to examine that issue. He had not alleged, even in the alternative, that the duration of his compulsory period of service should have been shorter or that he should have paid a smaller fee, but had simply stated that he should have been able to end his engagement without any restrictions and to choose when to leave the army. 72. As to the purpose and proportionality of the restrictions imposed on military medical officers by Article 64 of Legislative Decree no. 1400/1973, the Government referred to the reasoning of the Court of Audit’s judgments nos. 2763/2013 and 3822/2013 ... 73. Lastly, the Government pointed out that the applicant had had the opportunity to avoid paying the sum to the tax office immediately and to await the judgment of the plenary Court of Audit by applying in advance for a stay of execution under Article 94 of Decree no. 721/1970 and Article 51 of Decree no. 1225/1981. He had also been entitled under domestic law to seek permission from the army to repay his debt in instalments. The Government were convinced that the army, enjoying discretion in such matters, would have taken into account the applicant’s financial circumstances, the amount he owed and practice in this area. (b) The applicant 74. Relying on Van der Mussele v. Belgium (23 November 1983, §§ 34 ‑ 35, Series A no. 70) and Mihal v. Slovakia ((dec.), no. 23360/08, §§ 44-47, 28 June 2011), the applicant submitted that, while the burden imposed on him was not criminal in nature, it amounted to “the menace of a penalty”. In particular, it had had significant potential consequences that were sufficiently daunting to lead him to offer his services against his will under the “menace of a penalty”. In that connection, the Government had simply cited examples of similar regulations in other States and listed certain advantages that allegedly eased the burden on him. 75. The applicant, stating that he was relying on the Van der Mussele precedent (cited above), asserted that he had never “offered himself voluntarily” for the work in question. He accepted that he had chosen to become an army officer and therefore was compelled to abide by all the requirements associated with that choice. However, he had merely accepted a general status, which in his submission could not be said to amount to explicit consent to assume obligations that were contrary to the rights enshrined in the Convention. Furthermore, the army authorities had never informed him of his supposed obligation to serve in the army for an additional five years. The invitation issued on 18 January 1996 to officers – including himself – had simply been aimed at encouraging them to apply to undergo specialist training and thereby to gain additional experience that could improve their career prospects in the army. 76. As to whether the burden was reasonable, the applicant submitted that the opportunity for him to publish scientific articles or practise medicine on a private basis was not sufficient to counterbalance the burden imposed on him by the State. He pointed out that he was an anaesthetist and not a general practitioner. If the purpose of the fee in issue had been, as the Government maintained, to offset the costs borne by the State in training army officers, it should have been calculated on the basis of the training period (and not the entire period of compulsory service) and the amount of the corresponding expenses. Yet the Government had been unable to quantify the relevant sum. 77. The applicant further alleged that, despite the Government’s submissions to that effect, the present case did not fall within the scope of paragraph 3 (b) of Article 4 of the Convention; that paragraph dealt with conscription and was not applicable to regular members of the armed forces. 78. Lastly, the applicant asserted that not only had the authorities never given him the opportunity to pay the sum demanded in several instalments, but he had also been compelled to repay his debt by 31 May 2010 at the latest in order to avoid being charged the full amount of interest for late payment. 2. The Court’s assessment (a) Scope of the case 79. The Court reiterates that the first adjective in the phrase “forced or compulsory labour” brings to mind the idea of physical or mental constraint. As regards the second adjective, it cannot refer just to any form of legal compulsion or obligation. For example, work to be carried out in pursuance of a freely negotiated contract cannot be regarded as falling within the scope of Article 4 on the sole ground that one of the parties has undertaken with the other to do that work and will be subject to sanctions if he does not honour his promise. What there has to be is work “exacted ... under the menace of any penalty” and also performed against the will of the person concerned, that is, work for which he “has not offered himself voluntarily” (see Van der Mussele, cited above, § 34). 80. As the Court has previously held, paragraph 3 of Article 4 is not intended to limit the exercise of the right guaranteed by paragraph 2, but to delimit the very content of this right, for it forms a whole with paragraph 2 and indicates what is not considered forced or compulsory labour (ibid., § 38). In accordance with sub-paragraph 3 (b), forced or compulsory labour does not include “any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service”. 81. In its decision in W., X., Y. and Z. v. the United Kingdom (nos. 3435/67 and 3 others, Commission decision of 19 July 1968, Yearbook 11, p. 594), the European Commission of Human Rights held that Article 4 § 3 (b) applied not only to compulsory military service but to all military service, even when entered into voluntarily by regular members of the armed forces. This extensive interpretation of the exception in question, in relation to soldiers who had enlisted before reaching the age of majority, appears to have been based solely on the first part of sub-paragraph (b), which refers to “any service of a military character”. 82. Nevertheless, the Court notes that in the present case the Government have not relied on the exception in Article 4 § 3 (b), apparently taking the view that that provision was not applicable in the case of the applicant, a regular member of the medical corps. 83. In any event, the Court considers that sub-paragraph 3 (b) of Article 4 must be viewed as a whole. A reading of the entire sub-paragraph in its context suggests, for two reasons, that it applies to compulsory military service in States where such a system is in place: firstly, through the reference to conscientious objectors, who will obviously be conscripts and not professional military personnel and, secondly, through the explicit reference to compulsory military service at the end of the sub-paragraph. The Court refers in this connection to the general principle that exceptions to a rule must be strictly construed. This is all the more valid in that the prohibitions set forth in Article 4 §§ 1 and 2 of the Convention form part of the core Convention rights. 84. The Court further notes that Article 2 § 2 (a) of the International Labour Organisation Convention no. 29 provides that forced or compulsory labour does not include “any work or service exacted in virtue of compulsory military service laws for work of a purely military character”, which implies that this exception applies solely in the case of conscription. 85. Similarly, the Council of Europe’s European Committee of Social Rights has, when examining the issue of forced labour, made a distinction between the situation of regular members of the armed forces and that of conscripts. The Committee’s conclusions concerning various countries, including Greece, indicate that it has found that the excessive length of the period during which regular officers were required to remain in service was a ground for non-compliance with Article 1 § 2 of the European Social Charter, on the prohibition of forced labour ... 86. Furthermore, Recommendation CM/Rec(2010)4 of the Committee of Ministers to member States on human rights of members of the armed forces states that the authorities should not impose on members of the armed forces a requirement to serve for a period which would be unreasonable and would amount to forced labour ... 87. On the basis of all these factors, the Court considers, in accordance with the object and purpose of the Convention, that sub-paragraph 3 (b) of Article 4 does not cover work undertaken by regular members of the armed forces. The Court is therefore called upon in the present case to examine the question of compliance with Article 4 § 2. (b) Compliance with Article 4 § 2 88. With this in mind, the Court must ascertain in the present case whether the applicant “offered himself voluntarily” for the work in question, having had prior knowledge of all the possible consequences, and whether his decision not to carry on performing the work up to the end of the period prescribed by law may have been affected by “the menace of a penalty”. 89. The Court observes that the applicant was admitted to the Corps Officers’ Military Academy (medical section) in 1986, and on that basis enrolled on a six-year medical degree course at the University of Thessaloniki’s Faculty of Medicine. During that time he was paid a salary. On 3 June 1993, after completing the course, he was appointed to the rank of second lieutenant in the army medical corps and, in accordance with Article 64 § 1 of Legislative Decree no. 1400/1973, undertook to serve for a period corresponding to three times the duration of his studies – that is, eighteen years. 90. Later, at the invitation of the army, the applicant decided to specialise in anaesthesiology and, through the army, obtained a placement as an intern in the 424 General Military Hospital in Thessaloniki from 26 July 1996 to 30 July 1997. He was subsequently offered a paid position, again through the army, in the Papanikolaou General Regional Hospital in Thessaloniki from 30 July 1997 to 27 July 2001, as a junior doctor specialising in anaesthesiology. After completing his specialist training, he was required by Article 64 § 7 of Legislative Decree no. 1400/1973 to serve in the armed forces for a further five years. 91. The Court notes that while the applicant was undergoing his specialist training, a new Law (no. 3257/2004) came into force, altering the conditions for the early departure of officers. Section 1 of the Law reduced the length of compulsory service for officers to twice the duration of their studies at military academy, while maintaining the requirement for officers who had acquired a specialist qualification to serve for a further five years and affording them the opportunity to end their engagement before completing the prescribed term of service by paying the State a fee corresponding to the basic wage for their grade multiplied by the number of months remaining to be served. Accordingly, the Court’s examination of whether the work required of the applicant was forced or compulsory in nature will have regard to the legislative framework in force on 22 January 2006, the date of his decision to resign at the age of 37. 92. The Court notes at the outset that the applicant cannot legitimately maintain that he was unaware of the rationale and scope of the obligations he had entered into when embarking on a career as an officer in the army medical corps. One of the main benefits deriving from enlistment in the armed forces is being able to study free of charge. The armed forces cover the tuition fees of the officers concerned during their course, pay them a salary and grant them access to the welfare benefits available to regular members of the forces. In return, they require them to undertake to serve for a certain number of years after obtaining their qualification. 93. The Court notes that the requirement in the original version of Article 64 of Legislative Decree no. 1400/1973 for officers to serve for a period corresponding to three times the duration of their studies without the possibility of ending their engagement was found by the Supreme Administrative Court (judgment no. 1571/2010) to be in breach of Article 1 § 2 of the European Social Charter. This requirement was relaxed with the entry into force on 29 July 2004 of Law no. 3257/2004, which formed the basis for the calculation of the fee payable by the applicant. 94. The Court considers that the requirement for army officers to continue serving for a specified period after the end of their training is an integral part of the duties they assume. The calculation of the length of the engagement of officers who have received training through the army and the conditions for ending their engagement are matters falling within the State’s margin of appreciation. The State’s concern to secure a return on investment in the training of army and medical corps officers and to ensure that the army has sufficient supervisory personnel for an appropriate period in relation to its needs justifies prohibiting officers from resigning for a certain time and making their early departure subject to a fee to cover the living expenses and tuition costs which the State covered during their training, when it also paid them a salary and granted them welfare benefits. 95. In this connection, the Court considers it relevant to refer to the reasoning in the Court of Audit’s judgments nos. 2763/2013 and 3822/2013 to the effect that the regulations in issue were intended, among other things, to avoid sudden and premature mass departures of officers and the risk of undermining the country’s defence capabilities. 96. It remains to be determined whether the applicant was subjected to a disproportionate burden, the only factor that could lead the Court to find a violation of Article 4 § 2 of the Convention in the present case. 97. In Van der Mussele (cited above, § 37) the Court held that if a service that was required in order to gain access to a given profession imposed a burden which was so excessive or disproportionate to the advantages attached to the future practice of that profession that the service could not be treated as “having been voluntarily accepted”, the service in question fell within the prohibition of compulsory labour. In order to determine whether the obligations imposed on the applicant prevailed over the advantages linked to his chosen profession, the Court will not consider the situation at the time when he was admitted to the military academy and opted to acquire a specialist qualification, but rather in 2004, when the law amending Legislative Decree no. 1400/1973 took effect, since the Legislative Decree as amended was the law in force at the time when the applicant decided to end his engagement and he had to comply with the requirements set out therein. 98. The Court cannot ignore the fact that it was through the intermediary of the army that the applicant pursued his medical studies and obtained his specialist qualification as an anaesthetist by working from 1996 to 2001, initially at the 424 General Military Hospital in Thessaloniki and later at the Papanikolaou General Regional Hospital in Thessaloniki. It observes in this connection that section 38(2) of Law no. 1397/1983 prohibited doctors from undertaking specialist training in hospitals beyond the number of available places, but provided that supernumerary positions of this kind could be created for regular medical officers in the armed forces, a possibility of which the applicant took advantage. Furthermore, Greek legislation gives officers such as the applicant a choice between serving for a specified period in the armed forces and resigning before the end of their fixed engagement in exchange for a fee. 99. The Court also notes that, following the entry into force of the above-mentioned Law no. 3257/2004, officers in the army medical corps, such as the applicant, were permitted to practise medicine on a private basis outside their working hours. 100. These aspects show that during their ordinary and specialist training, military medical officers are entitled to privileges that are not available to civilian medical students, such as job security. Bearing in mind the additional fact that military medical officers receive a salary for the duration of their studies, there is ample justification for the requirement for those wishing to leave the army before the end of their compulsory term of service to pay certain sums to the State by way of reimbursement of the expenses incurred in training them. The Court therefore considers that the actual principle of buying back the remaining years of service does not raise any issues in terms of the proportionality principle. 101. However, the Court takes the view that the conditions governing the buying-back process may in certain cases contribute to upsetting the balance that has to be struck between the protection of the individual right of the officer concerned and that of the interests of the community. 102. In the present case the Court notes, firstly, that when the applicant tendered his resignation the Army General Staff informed him that he was required to serve for a further nine years, four months and twelve days or, failing that, to pay the State a fee of EUR 106,960 (decision of 26 May 2007). It observes, secondly, that the Court of Audit eventually concluded on 12 December 2013 that the applicant’s five years of specialist training should be counted as part of the overall period of eighteen years’ compulsory service and accordingly reduced the fee payable to the State to EUR 49,978.33. 103. The Court notes that neither the applicant nor the Government were able to indicate the precise amount of the salary and allowances received by the applicant during his degree course and his specialist training as an anaesthetist. However, it observes that according to their own estimations, the applicant and the Government agreed that he must have received a total amount of between EUR 86,976 and EUR 91,476 during the periods from September 1986 to June 1993 and from August 1996 to July 2001. 104. The Court observes that the sum of EUR 49,978.33, which the applicant was eventually asked to pay in accordance with the Court of Audit’s judgment of 12 December 2013, represented less than two-thirds of the total amount he had received during the relevant time (between EUR 86,976 and EUR 91,476) and cannot on that account be considered unreasonable. 105. The Court further notes that, following a request by the applicant to that effect, the President of the plenary Court of Audit made an interim order on 17 March 2009 staying the execution of the decision of 26 May 2007, and that the stay of execution was confirmed on 21 October 2009 by the plenary Court of Audit. 106. The stay of execution did not prevent the Thessaloniki Tax Office from ordering the applicant, on 18 March and 9 April 2009, to pay the sum of EUR 109,527, comprising the above-mentioned fee of EUR 106,960, plus EUR 2,139.20 in stamp duty and EUR 427.84 to the agricultural insurance fund. On 10 May 2010 the Revenue Department of the Ministry of Finance informed the applicant that, because the amount due had not been paid by the end of the previous year, interest of EUR 13,143.24 had been charged for late payment. It also informed him that if he paid the outstanding amount by 31 May 2010, he would be entitled to an 80% discount on the interest. On 26 May 2010 the applicant deposited the sum of EUR 112,155.69 at the Thessaloniki Tax Office. 107. Despite the stay of execution granted to the applicant, first by the President of the plenary Court of Audit and subsequently by the plenary Court of Audit itself, and notwithstanding the fact that the proceedings before the plenary Court of Audit had scarcely begun, the intervention of the Revenue Department of the Ministry of Finance on 10 May 2010 meant that he was required to pay the sum due, on which interest of between 12% and 13% had already been charged. If he had not agreed to pay that amount in full, it would have been increased even further on account of the time required by the Court of Audit to reach its decision. 108. In addition, the Court notes that, while Article 3 § 1 of the State Revenue Collection Code and Article 96 of Legislative Decree no. 721/1970, as interpreted by Opinion no. 120/2002 of the State Legal Council, provide that debts owed by officers to the armed forces may be paid in instalments, that option has to be mentioned in the decision imposing the fee. However, no such information was included in the decision of 26 May 2007. 109. Having regard to these circumstances, the Court has no doubt that the applicant was obliged under constraint to act as he did (see, mutatis mutandis, Deweer v. Belgium, 27 February 1980, § 51, Series A no. 35). The Court observes that the authorities disregarded two judicial decisions that were binding on them and persisted in enforcing their initial decision of 26 May 2007, which stated that the payment process could not be suspended in the event of an appeal by the applicant (see, mutatis mutandis, Georgoulis and Others v. Greece, no. 38752/04, § 25, 21 June 2007). By requiring the immediate payment of the sum of EUR 109,527, increased to EUR 112,155.69 with interest, the tax authorities imposed a disproportionate burden on the applicant. There has therefore been a violation of Article 4 § 2 of the Convention. ... | The Court held that there had been a violation of Article 4 § 2 (prohibition of forced labour) of the Convention. It considered in particular that the State’s desire to secure a return on its investment in the training of army officers and military medical officers and to ensure adequate staff numbers justified prohibiting their resignation from the forces for a specified period – to be determined by the State – and to subject them to paying a fee in order to cover the subsistence and training costs which it had incurred during their years of training, in addition to paying remuneration and social benefits. The Court added that military medical officers enjoyed privileges unavailable to civilian medical students during their studies and specialist training. Nevertheless, by ordering the applicant to pay the sum due in order to buy back his remaining years of service, to the tune of 109,527 euros, without any facility for paying in instalments, even though he had had an appeal pending before the Court of Audit, the authorities had failed to strike a fair balance between protecting the applicant’s individual right and the interests of the community at large. |
426 | Challenging the lawfulness of detention | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Entry, residence and deportation of aliens 1. The Aliens and Immigration Law and the Refugee Law 61. The entry, residence and deportation of aliens are regulated by the Aliens and Immigration Law of 1959 (Cap. 105, as amended). 62. Under section 6(1) of the Law a person is not permitted to enter the Republic if he is a “prohibited immigrant”. This category includes any person who enters or resides in the country contrary to any prohibition, condition, restriction or limitation contained in the Law or in any permit granted or issued under the Law (section 6(1)(k )), any person who was deported from the Republic either on the basis of the Law or on the basis of any other legislation in force at the time of his or her deportation (section 6(1)(i)) and any alien who wishes to enter the Republic as an immigrant, but does not have in his or her possession an immigration permit granted in accordance with the relevant regulations (section 6(1)( l )). Furthermore, a person can be considered to be a “prohibited immigrant” on, inter alia, grounds of public order, legal order or public morals or if he or she constitutes a threat to peace (section 6(1)(g )). 63. Under the Law the deportation and, in the meantime, the detention of any alien who is considered “ a prohibited immigrant” can be ordered by the Chief Immigration Officer, who is the Minister of the Interior (section 14). Section 14(6) provides that a person against whom a detention and/or deportation order has been issued shall be informed in writing, in a language which he understands, of the reasons for this decision, unless this is not desirable on public - security grounds, and has the right to be represented before the competent authorities and to request the services of an interpreter. In addition, Regulation 19 of the Aliens and Immigration Regulations of 1972 (as amended ) provides that when the Immigration Officer decides that a person is a prohibited immigrant, written notice to that effect must be served on that person in accordance with the second schedule of the Regulations. 64. In the case of Uros Stojicic v. the Republic of Cyprus, through the Immigration Officer (judgment of 27 June 2003, case no. 1018/2002) the Supreme Court pointed out that, due to its seriousness, a deportation order was subject to restrictions and conditions of a substantive and formal nature, which aimed to safeguard the fundamental rights of persons against whom a deportation procedure was being carried out to information and a hearing. These safeguards are provided for in the domestic law, in particular, section 14(6) of the Aliens and Immigration Law and Regulation 19 of the Aliens and Immigration Regulations, as well as in Article 1 of Protocol No. 7 to the Convention. The Supreme Court observed that Cypriot jurisprudence recognised the wide discretion of the Immigration Officer as an integral part of state sovereignty but at the same time imposed safety measures in order to prevent arbitrary acts by state organs and abuses which could lead to the infringement of fundamental and internationally safeguarded human rights. The exception provided for in section 14(6), which is grounded on reasons of public security, will apply where the authorities consider it undesirable to inform the person concerned of the reasons for the decision to detain and deport him. For example, in Kamran Sharajeel v. the Republic of Cyprus, through Minister of the Interior (judgment of 17 March 2006, case no. 725/2004, the Supreme Court accepted the application of the exception as it was obvious from the correspondence in the file that the case had been treated as urgent by the authorities and that the grounds for the deportation concerned national security. The applicant in that case had been arrested on the basis of information that he was reportedly involved with Al-Qaeda and was deported within three days of his arrest. 65. Unauthorised entry and/or stay in Cyprus are criminal offences. Until November 2011, they were punishable by imprisonment or a fine (section 19(2)) of the Aliens and Immigration Law). Law 153(I)/2011, which entered into force in November 2011, removed the punishment of imprisonment but retained the criminal nature of the contraventions and their punishment with a fine (section 18). Such punishment is not applicable to asylum seekers. Furthermore, a person who has entered the Republic illegally will not be subject to punishment solely on the basis of his illegal entry or residence, provided that he appears without unjustified delay before the authorities and gives the reasons for his illegal entry or residence (Section 7(1) of the Refugee Law, Law 6 (I) of 2000, as amended). 66. Further, section 19 A (2) of the Aliens and Immigration Law provides, inter alia, that a person who intentionally and with the aim of obtaining profit assists a third country national to enter or pass through the Republic in breach of the Aliens and Immigration Law, commits a criminal offence which is punishable, following conviction, with imprisonment of up to eight years or with a fine, or both. 2. Challenging deportation and detention orders 67. Deportation and detention orders can be challenged before the Supreme Court by way of administrative recourse under Article 146 ( 1 ) of the Constitution of the Republic of Cyprus. This provision provides as follows: “The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.” 68. A recourse must be made within seventy-five days of the date when the decision or act was published or, if it was not published and in the case of an omission, when it came to the knowledge of the person making the recourse (Article 146 ( 3 ) ). Should the recourse succeed, the power of the Supreme Court is confined to declaring an act or decision null or void, or, in the case of an omission, that it ought not to have occurred, in that what had not been done should have been done (Article 146 (4)). The jurisdiction of the Supreme Court under Article 146 is limited to reviewing the legality of the act, decision or omission in question on the basis of the facts and circumstances existing at the time the act, decision or omission occurred. The Supreme Court will not go into the merits of the decision and substitute the decision of the administrative authority or organ concerned with its own decision; it will not decide the matter afresh. If the Supreme Court annuls the act or decision in question, the matter is automatically remitted to the appropriate administrative authority or organ for re-examination ( see the domestic case-law citations in Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, § 73, 21 July 2011 ). 69. Article 146 (6) provides for compensation as follows: “Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant”. 70. The Supreme Court has held that the lawfulness of deportation and detention orders can only be examined in the context of a recourse brought under Article 146 of the Constitution and not in the context of a habeas corpus application ( see, for example, the Supreme Court ’ s judgment of 30 December 2004 in Elena Bondar appeal no. 12166 against the refusal of an application for a writ of habeas corpus, (2004) 1 (C) CLR 2075 ). 71. A recourse does not have automatic suspensive effect under domestic law. In order to suspend deportation an application must be made seeking a provisional order. The Supreme Court has the power to issue provisional orders, suspending the enforcement of the decision taken by the administrative authority, pending the hearing of the case on the merits. A provisional order is an exceptional discretionary measure and is decided on a case- by -case basis (rule 13 of the Supreme Constitutional Court Rules 1962). The Supreme Court will grant a provisional order if an applicant establishes that the contested decision is tainted by flagrant illegality or that he or she will suffer irreparable damage from its enforcement (see amongst a number of authorities, Stavros Loizides v. the Ministry of Foreign Affairs (1995) 3 C.L.R. 233; Elpida Krokidou and others v. the Republic, (1990) 3 C C.L.R. 1857; and Sydney Alfred Moyo & another v. the Republic (1988) 3 CLR 1203 ). 72. Until recently, domestic law did not provide for legal aid in respect of a recourse under Article 146 of the Constitution against deportation and detention orders. In 2012 the Legal Aid Law (Law no. 165(I)/2002) was amended, enabling illegally staying third-country nationals to apply for legal aid (section 6C, Amending Law no. 8(I)/2012). However, legal aid is limited to first - instance proceedings and will be granted only if the recourse is deemed to have a reasonable chance of success (sections 6 C (2)(aa) and (bb)). B. Asylum 73. The Cypriot Government assumed responsibility for assessing asylum claims from 1 January 2002. An Asylum Service was established for this purpose in the Migration Department of the Ministry of Interior. Prior to that, the UNHCR dealt with such claims. 74. Asylum seekers can appeal against decisions by the Asylum Service to the Reviewing Authority, which was established by the Refugee Law (Law 6 (I) of 2000, as amended). Procedures before the Asylum Service and the Reviewing Authority are suspensive: asylum seekers have a right under section 8 of the Refugee Law to remain in the Republic pending the examination of their claim and, if lodged, their appeal. Although the authorities retain the power to issue deportation and detention orders against an applicant during this period, such orders can only be issued on grounds which are unrelated to the asylum application, for example, the commission of a criminal offence, and they are subject to the suspensive effect (see the Supreme Court ’ s judgment of 30 December 2004 in the case of Asad Mohammed Rahal v the Republic of Cyprus (2004) 3 CLR 741 ). 75. The decision of the Reviewing Authority can be challenged before the Supreme Court by way of administrative recourse under Article 146 (1) of the Constitution (see paragraphs 6 7-70 above). According to section 8 of the Refugee Law, however, following the decision of the Reviewing Authority, an applicant has no longer the right to remain in the Republic. A recourse does not have automatic suspensive effect ( see paragraph 7 1 above). 76. Finally, section 6B of the Legal Aid Law (Law no. 165(I)/2002 as amended by Amending Law 132(I)/2009), provides that asylum - seekers may apply for legal aid in respect of a recourse brought under Article 146 of the Constitution against decisions by the Asylum Service and the Reviewing Authority. As in the case of deportation and detention (see paragraph 72 above), legal aid will only be granted in respect of the first - instance proceedings (section 6 B (2)(aa)) and if there is a prospect of success (section 6B(2)(bb)). C. Cases relied on by the parties regarding “suspensiveness” and “speediness” in deportation and detention cases 1. Cases relied on by the Government 77. Recourses nos. 382/2011 ( Kazemyan Marvi Behjat v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ), 383/2011 ( Embrahimzadeh Poustchi Omid v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ) and 384/2011 ( Bagher Embrahim Zadeh v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ) against deportation and detention orders were lodged before the Supreme Court on 21 March 2011 by a couple and their son. An ex parte application for a provisional order was filed the next day. The hearing of the application took place on 20 April 2011. On that day the complainants agreed to an early hearing of the recourse and withdrew their application as part of an agreement with the Government to have their deportation suspended and have an early hearing of the main proceedings. The cases were then listed for a directions hearing to be held on 2 May 2001. The recourses were eventually withdrawn on 10 June 2011. They lasted two months and twenty days. The complainants were detained throughout this period, until their deportation on 17 July 2011. 78. Recourse no. 601/11 ( Olha Voroniuk v. Minister of the Interior and Director of the Civil Registry and Migration Department ) against deportation and detention orders was lodged on 11 May 2011 along with an application for a provisional order. The application was heard on 1 June 2011 when it was withdrawn after an agreement was reached with the Government. The case was then listed for a clarifications hearing to be held on 29 June 2011. The complainant, however, withdrew the recourse on 28 June 2011 in order to return to her country. The proceedings lasted one month and seventeen days. The complainant was detained throughout this period, until her deportation on 8 July 2011. 79. In recourse no. 439/2009 ( Sima Avani and Maral Mehrabi Pari v. the Republic of Cyprus – 1. Minister of the Interior and Director of the Civil Registry and Migration Department and 2. the Reviewing Authority for Refugees ) lodged on 16 April 2009, it appears that the complainants challenged both the Reviewing Authority ’ s decision and the deportation and detention orders. They also filed an application for a provisional order. Rule 39 was applied by the Court. On 16 April 2009 the Supreme Court granted the provisional order, suspending the complainants ’ deportation. It then gave judgment dismissing the recourse on 27 August 2009, upholding the asylum decision taken by the authorities. The proceedings lasted for four months and eleven days. The complainants were detained throughout this period. They were released on 1 September 2009 and were not detained during the appeal proceedings, which were concluded on 10 October 2011 (Revisional appeal no. 150/09). 2. Cases relied on by the applicant 80. In recourse no. 493/2010 ( Leonie Marlyse Yombia Ngassam v. the Republic of Cyprus - the General Director of the Ministry of the Interior and the Attorney-General of the Republic ) against deportation and detention orders, an application for a provisional order was filed on 21 April 2010. The application was withdrawn following an agreement with the Government. Judgment was given on 20 August 2010. The proceedings therefore lasted three months and twenty-nine days, for the duration of which the complainant remained in detention. 81. In recourse no. 103/2012 ( Amr Mahmoud Youssef Mohammed Gaafar v. the Republic of Cyprus - Director of the Civil Registry and Migration Department and the Minister of the Interior ) the application for a provisional order was filed on 24 January 2012. It was subsequently withdrawn and the Supreme Court gave judgment on 23 July 2012. The proceedings lasted five months and twenty-nine days. The complainant was detained during this period. 82. In recourse no. 1724/2011 ( Mustafa Haghilo v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General ) against deportation and detention orders, the application for a provisional order was filed on 28 December 2011. The application was subsequently withdrawn and judgment was given on 13 July 2012. The proceedings lasted six months and fifteen days. At the time of the submission of the applicant ’ s observations of 31 July 2012 the appeal proceedings were still pending and the complainant was still in detention. 83. Recourse no. 1723/2011 ( Mohammad Khosh Soruor v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General ) against deportation and detention orders was lodged on 28 December 2011 along with an application for a provisional measure. The application was not withdrawn but was dismissed by the Supreme Court on 8 February 2012. At the time of the submission of the applicant ’ s observations of 31 July 2012 the main proceedings in this recourse were still pending and had up to that date lasted six months and twenty-two days. The complainant was still in detention. 84. In recourse no. 1117/2010 ( Shahin Haisan Fawzy Mohammed v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General) the Supreme Court gave judgment on 23 December 2010, annulling deportation and detention orders issued against the complainant. Following this judgment the authorities issued new deportation and detention orders. A recourse challenging these orders along with an application for a provisional order to suspend deportation were filed on 30 December 2010 (recourse no. 1718/10; Shahin Haisan Fawzy Mohammed v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General). According to the minutes of the proceedings the authorities were notified of the application on 31 December 2010. On 4 January 2011, at the hearing of the application, however, the authorities informed the Court that the complainant had been deported on 2 January 2011. His representative withdrew the application but maintained the recourse. At the time, the complainant ’ s recourse against the Reviewing Authority ’ s decision was still pending before the Supreme Court (recourse no. 1409/2010). D. Detention pending deportation 85. At the material time, Directive 2008 /115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals, “the EU Returns Directive”, had not been transposed into Cypriot domestic law. As the deadline for transposition expired on 24 December 2010 (see Article 20 of the Directive) the Directive had direct effect in domestic law and could therefore be relied on by an individual in court (see for example the Supreme Court judgments of 18 January 2011 in the case of Shanmukan Uthajenthiran, habeas corpus application no. 152/2010 and of 20 January 2011, and the case of Irfam Ahmad, habeas corpus application 5/2011). 86. In accordance with Article 15 §§ 5 and 6 of the Directive, detention may be maintained as long as the conditions laid down in subsection 6 are in place, but not longer than six months. Exceptionally, if a deportee refuses to cooperate with the authorities, or there are delays in the obtaining of the necessary travel documents, or the deportee represents a national security or public order risk, detention may be prolonged for a further twelve months, to a maximum of eighteen months (see paragraph 98 below). The Directive has been invoked before the Supreme Court in habeas corpus proceedings in which detainees challenged the lawfulness of their protracted detention for the purpose of deportation (see, for example, Supreme Court judgments of 12 March 2012 in the case of Yuxian Wing, habeas corpus application no. 13/2012; of 8 January 2011 in the case of Shanmukan Uthajenthiran, cited above; and of 22 December 2011 in the case of Mostafa Haghilo, habeas corpus application no. 133/2011). 87. In November 2011, Law no. 153(I)/2011 introduced amendments to the Aliens and Immigration Law with the aim of transposing the “ EU Returns Directive ”. This Law expressly provides that habeas corpus applications before the Supreme Court challenging the lawfulness of detention with a view to deportation can be made on length grounds (for the previous situation, see Kane v. Cyprus (dec.), no. 33655/06, 13 September 2011)). E. Relevant Constitutional provisions 88. Part II of the Constitution contains provisions safeguarding fundamental human rights and liberties. Article 11 protects the right to liberty and security. It reads as follows, in so far as relevant: Article 11 “1. Every person has the right to liberty and security of person. 2. No person shall be deprived of his liberty save in the following cases when and as provided by law: ... (f) the arrest or detention of a person to prevent him effecting an unauthorised entry into the territory of the Republic or of an alien against whom action is being taken with a view to deportation or extradition. 3. Save when and as provided by law in case of a flagrant offence punishable with death or imprisonment, no person shall be arrested save under the authority of a reasoned judicial warrant issued according to the formalities prescribed by the law. 4. Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing. 5. The person arrested shall, as soon as is practicable after his arrest, and in any event not later than twenty-four hours after the arrest, be brought before a judge, if not earlier released. ... 7. Every person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 8. Every person who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”. F. Other relevant domestic law 1. The Police Law 89. Section 24(2) of the Police Law 2004 (Law no. 73(I)/2004) concerns the general powers and duties of members of the police. It reads as follows: “ It is the duty of every member of the police readily to obey and execute all the orders and warrants which are lawfully issued to him by any competent authority, to collect and transmit information which affects public peace and the security of the Cyprus Republic, to prevent the commission of offences and public nuisance, to discover and bring transgressors to justice and to arrest all persons who he is lawfully authorised to arrest, for the arrest of whom there is a satisfactory ground. ” 90. Section 29(1)(c) and (d) of the Police Law concerns the duty of the police to keep order on public roads. Its reads as follows: “ (1) It is the duty of every member of the police: ... (c) to maintain order on public roads, streets, crossings, in airports and places of disembarkation and in other places of public recreation or places to which the public has access and (d) to regulate movement and the maintenance of order in cases of obstructions on public roads and streets or in other places of public recreation or places to which the public has access. ” 2. The Public Roads Law and the Prevention of Pollution of Public Roads and Places Law 91. Section 3 of the Public Roads Law (Cap. 83 as amended) provides, inter alia, that it is a criminal offence punishable by imprisonment to place any rubbish or any other matter or thing whatsoever on any public road, or allow any filth, refuse, offensive matter or thing whatsoever to flow or run into or onto it, or intentionally obstruct the free passage of the road (section 3). 92. Section 3(1) of the Prevention of Pollution of Public Roads and Places Law of 1992 (Law no. 19(I)/92 as amended) provides, inter alia, that it is a criminal offence punishable by imprisonment to put, throw, leave, or tolerate or allow the throwing or leaving of, any refuse, waste or filth on a public road or in another public place. 3. The Law on the Rights of Persons who are Arrested and Detained 93. The Law on the Rights of Persons who are Arrested and Detained (Law no. 163(I)/2005) introduced a number of provisions regulating the rights and treatment of arrestees held in custody. It provides, inter alia, for the right of a person who is arrested by the police to a private telephone call to a lawyer of his or her choice immediately after his or her arrest (section 3(1)(a) ). THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 106. Relying on Articles 2 and 3 of the Convention, the applicant complained that if deported to Syria, he would be exposed to a real risk of death or torture or inhuman or degrading treatment. These provisions read as follows: Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties ’ submissions 107. The Government submitted that the applicant could no longer claim to be a victim of the alleged violation of Articles 2 and 3 of the Convention as he had been granted refugee status on 29 April 2011 and would therefore not be deported. Accordingly, they invited the Court to declare the applicant ’ s complaints under these provisions inadmissible on this ground. In the alternative, the Government argued that the applicant had failed to exhaust domestic remedies. They noted in this respect that the applicant had not, in the course of his recourse before the Supreme Court, filed an application seeking a provisional order to suspend his deportation. Further, he had not brought a recourse against the deportation and detention orders issued against him. 108. The applicant accepted that he no longer faced a risk of deportation to Syria and the question of violation of Articles 2 and 3 of the Convention taken alone was not as such in issue anymore. He submitted that his recognition as a refugee was in substance an acknowledgment by the Government that his deportation to Syria would have been in violation of these provisions. He stressed, however, that if it had not been for the application of Rule 39 of the Rules of Court by the Court he would have been deported by the authorities. In reply to the Government ’ s plea of non-exhaustion he maintained that he did not have an effective domestic remedy at his disposal as required by Article 35 § 1 of the Convention. In this respect, the applicant pointed out, inter alia, that a recourse against a decision by the Reviewing Authority or against deportation and detention orders did not have automatic suspensive effect. Neither did an application for a provisional measure to suspend deportation made in the context of such proceedings. Lastly, the applicant argued that the scope of the recourse proceedings before the Supreme Court was too limited, as it did not entail an examination of the merits of the administrative decisions concerning asylum and deportation. B. The Court ’ s assessment 1. Victim status 109. The Court reiterates that, as a general rule, a decision or measure favourable to the applicant is not sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, amongst many other authorities, Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012; I .M. v. France, no. 9152/09, §§ 94-95, 2 February 2012; and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 56, ECHR 2007 ‑ II ). 110. The Court notes that in the present case the applicant, on 29 April 2011, was granted refugee status. The President of the First Section decided to discontinue the application of Rule 39 on this basis. As the applicant is no longer at risk of deportation to Syria, he can no longer claim to be a victim of a violation of his rights under Articles 2 and 3 of the Convention within the meaning of Article 34 of the Convention. It follows that this part of the application must be rejected as being incompatible ratione personae with the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 2. Exhaustion of domestic remedies 111. In view of the above conclusion, the Court does not need to examine the question of exhaustion of domestic remedies raised by the Government. II. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE CONVENTION 112. Relying on Article 13 of the Convention, the applicant complained of the lack of an effective domestic remedy with regard to his complaints under Articles 2 and 3. In particular, he complained that a recourse challenging the decisions of the Reviewing Authority and the deportation and detention orders did not have automatic suspensive effect and did not entail an examination of the merits of the administrative decisions. Article 13 provides as follows: Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. The parties ’ submissions 113. Despite the fact that he had been granted refugee status, the applicant considered that the Court should still proceed to examine his complaint under Article 13 of the Convention taken together with Articles 2 and 3. He submitted that he had had an arguable claim under the latter provisions. The authorities ’ decision to grant him refugee status confirmed this. He argued that he could still continue to claim to be a victim of a violation of Article 13 as he never had an effective domestic remedy at his disposal for the violation of his Convention rights. The applicant emphasised that he had not been removed to Syria only because of the interim measure indicated by the Court to the Cypriot Government. 114. The Government did not make any specific submissions on this matter. 2. The Court ’ s assessment 115. Although the respondent State did not raise any objection as to the Court ’ s competence ratione personae, this issue calls for consideration proprio motu by the Court. 116. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce - and hence to allege non-compliance with - the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. However, Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131 ). 117. The Court has refrained from giving an abstract definition of the notion of arguability, preferring in each case to determine, in the light of the particular facts and the nature of the legal issue or issues raised, whether a claim of a violation forming the basis of a complaint under Article 13 is arguable and, if so, whether the requirements of this provision were met in relation thereto. In making its assessment the Court will also give consideration to its findings on the admissibility of the substantive claim (see Ivan Atanasov v. Bulgaria, no. 12853/03, §§ 100-101, 2 December 2010, and Boyle and Rice, cited above, § 54). The fact, however, that a substantive claim is declared inadmissible does not necessarily exclude the operation of Article 13 (see I. M. and Gebremedhin, and, mutatis mutandis, Boyle and Rice, §§ 54 -55; all cited above). 118. More specifically, and of relevance to the present case, in deportation cases the Court has taken the view that loss of victim status in respect of alleged violations of Articles 2 and 3 of the Convention because an applicant was no longer exposed to the threat of deportation did not necessarily render that complaint non-arguable or deprive an applicant of his victim status for the purposes of Article 13. For example, in both the cases of I .M. and Gebremedhin (cited above), although the Court ruled that the applicants could no longer be considered as victims in respect of the alleged violation of Article 3, it found that the main complaint raised an issue of substance and that, in the particular circumstances, the applicants were still victims of the alleged violation of Article 13 taken together with Article 3. The same approach was taken recently by the Court in the case of De Souza Ribeiro in relation to a deportation complaint under Articles 8 and 13 ( De Souza Ribeiro v. France [GC], no. 22689/07, §§ 84 ‑ 100, 13 December 2012, read together with De Souza Ribeiro v. France, no. 22689/07, §§ 22-26, 30 June 2011). 119. In the present case, having examined the case file, the Court considers that the applicant ’ s complaints under Articles 2 and 3 did raise a serious question as to the compatibility of his intended deportation in June 2010 with those provisions. It therefore finds that he can rely on Article 13. The Court observes in this respect that the Reviewing Authority in its decision granting the applicant refugee status held that the applicant had proved, in a convincing manner, that his fear of persecution and the danger to his life in the event of his return to Syria was objectively credible because of his political activity in Cyprus (see, mutatis mutandis, S.F. and Others v. Sweden, no. 52077/10, §§ 68-71, 15 May 2012 on the relevance of sur place activity in the receiving country). 120. In the circumstances, it cannot be said that the applicant can no longer claim to be a victim of the alleged violation of Article 13 taken in conjunction with Articles 2 and 3. Firstly, as in the cases of I .M. and Gebremedhin (both cited above), the facts constituting the alleged violation had already materialised by the time the risk of the applicant ’ s deportation had ceased to exist. The applicant ’ s complaint is that when he was under threat of deportation there was no effective domestic remedy in respect of his complaints under Articles 2 and 3. The Court notes in this regard that at the time the applicant was to be sent back to Syria, his asylum application was being re-examined by the authorities and that it appears from the file that his deportation was halted only because of the application by the Court of Rule 39. The decision granting the applicant refugee status was taken more than ten months after he lodged his complaints before this Court. Secondly, although the authorities ’ decision to grant the applicant asylum has removed the risk that he will be deported, that decision does not acknowledge and redress his claim under Article 13 in conjunction with Articles 2 and 3 about the effectiveness of judicial review proceedings (see paragraphs 109-110 above). It cannot therefore deprive him of his status as a “victim” in respect of his complaint under this head. 121. In the light of the foregoing and given that this complaint is not inadmissible on any other grounds, it must be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 122. The applicant claimed that there was no effective remedy in relation to his complaints under Articles 2 and 3 of the Convention as required by Article 13. Referring to the Court ’ s judgment in the case of M.S.S. v. Belgium and Greece ( [GC], no. 30696/09, §§ 288-293, ECHR 2011 ), he argued that the domestic remedies fell short of the requirements of Article 13 enunciated by the Court in its case-law. 123. First of all, a recourse before the Supreme Court against a decision by the Reviewing Authority or deportation and detention orders did not have automatic suspensive effect; nor did the filing of an application for a provisional order. If an application for such an order was filed, whether or not deportation would be suspended boiled down to a matter of practice which rested on the authorities ’ discretion and required a concession on the part of the applicant. Moreover, and contrary to the Government ’ s submissions, the authorities did not always suspend deportation orders. The applicant relied on the court record in a recourse challenging a decision by the Reviewing Authority in a case in which deportation had taken place despite the fact that an application for a provisional order to suspend the execution of the deportation order had been filed. The person concerned had been deported the day before the hearing of the application by the Supreme Court. As a result the application was withdrawn ( Shahin Haisan Fawzy Mohammed, see paragraph 84 above). The applicant also claimed that asylum - seekers faced a number of difficulties in filing applications for provisional orders. Such an order would only be granted on proof of flagrant illegality or irreparable damage. Further, until recently, legal aid was not available either for the institution of a recourse against deportation and detention orders or for an application for a provisional order (see paragraph 7 2 above). 124. Furthermore, although a decision by the Reviewing Authority was subject to judicial review, the Supreme Court could only examine its legality and could not examine the merits of the case. The scope of the Supreme Court ’ s jurisdiction was therefore too limited. Moreover, although it was possible, in view of recent amendments to the relevant domestic legislation, to apply for legal aid when challenging an asylum decision, it was rarely granted. The Supreme Court would only approve an application if it held that the recourse had a reasonable chance of success. It was, however, for the person concerned to establish the likelihood of success, which was a difficult hurdle to surmount since he or she would not have legal representation at that stage. 125. Lastly, the applicant contended that there were significant shortcomings in the asylum procedures before the Asylum Service and the Reviewing Authority. As a result, the examination of asylum requests fell short of the standards required. The applicant referred to reports by, inter alia, local non- governmental organisations [6] and the fourth ECRI report on Cyprus (see paragraph 97 above). (b) The Government 126. The Government submitted that the applicant had had effective domestic remedies in respect of his complaints under Articles 2 and 3 of the Convention as required by Article 13. 127. The Government first pointed out that the applicant had had access to the asylum determination procedure at the Asylum Service and had been able to appeal to the Reviewing Authority. These remedies had suspensive effect. The applicant had then brought a recourse against the decision of the Reviewing Authority. Although these proceedings did not have automatic suspensive effect, in the course of the proceedings the applicant could have filed an application for a provisional order to suspend the execution of the deportation order issued against him. When such an application was filed, the authorities, as a matter of administrative practice, always suspended deportation either until the outcome of the main recourse or until the Supreme Court had reached a decision on the application. If an applicant agreed to an early hearing of the recourse and to withdraw the application for a provisional order, the authorities would suspend deportation for the duration of the entire main proceedings. Otherwise, deportation would be suspended only pending the examination of the application. The Government emphasised that the above practice was uniform and consistent and referred to a number of court records of judicial review proceedings in which both the above scenarios had taken place (see paragraphs 77-79 above). 128. As regards the application for a provisional order, the Government pointed out that in accordance with domestic case-law, the Supreme Court would grant an order if an applicant established the flagrant illegality of the decision taken or that he or she had suffered irreparable damage as a result of the decision. 129. The Government also claimed that the applicant should have brought a recourse challenging the deportation and detention orders issued against him. In such proceedings a provisional order could also be sought for the purpose of suspending deportation. The practice followed was the same as that in a recourse brought against a decision by the Reviewing Authority (see paragraph 12 7 above). 130. In addition, the Government observed that the authorities, as a matter of usual practice, suspended the deportation order of a rejected asylum seeker if there were medical, family or humanitarian reasons for doing so. Additionally, before the execution of a deportation order, the authorities examined ex proprio motu whether there were reasons to believe that a rejected asylum seeker ’ s deportation would give rise to a real risk that he or she would be subjected to treatment in breach of Articles 2 and 3 of the Convention. The authorities also examined and decided any claim for suspension of the execution of the deportation irrespective of whether a recourse had been filed. 2. The Court ’ s assessment 131. The Court has already found that the applicant ’ s complaints under Articles 2 and 3 of the Convention are arguable and that the applicant can still claim to have been entitled to a remedy in that respect (see paragraphs 119 -1 21 above). 132. The notion of an effective remedy under Article 13 in this context requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see M. and Others v. Bulgaria, no. 41416/08, § 129, 26 July 201 1; Salah Sheekh v. the Netherlands, no. 1948/04, § 153, 11 January 2007; and Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002 ‑ I ). 133. In cases concerning the expulsion of asylum-seekers the Court has explained that it does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled (see M.S.S., cited above, § 286) or to any other receiving country in which he or she would be at a real risk of suffering treatment in violation of Article 3 (see, for example in the specific context of the application of the Dublin Regulation, M.S.S., cited above, §§ 342 et seq ). Where a complaint concerns allegations that the person ’ s expulsion would expose him or her to a real risk of treatment contrary to Article 3 of the Convention, the effectiveness of the remedy for the purposes of Article 13 imperatively requires close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005 ‑ III), independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000 ‑ VIII ), as well as a particularly prompt response (see De Souza Ribeiro, cited above, § 82 ). In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (see, inter alia, De Souza, cited above, § 82, 1 3 December 2012; I.M. v. France, cited above, § 58; Al Hanchi v. Bosnia and Herzegovina, no. 48205/09, § 32, 15 November 2011; Auad v. Bulgaria, no. 46390/10, § 120, 11 October 2011; Diallo v. the Czech Republic, no. 20493/07, § 74, 23 June 2011; M.S.S. , cited above, § 293; Baysakov and Others v. Ukraine, no. 54131/08, § 71, 18 February 2010; Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 108, 22 September 2009; and Gebremedhin, cited above, § 66 ). The same principles apply when expulsion exposes the applicant to a real risk of a violation of his right safeguarded by Article 2 of the Convention. 134. Turning to the present case, the Court notes that the applicant ’ s asylum application and appeal thereto were initially rejected by the Cypriot authorities. His file, however, was subsequently re-opened for re ‑ examination in view of new information put forward by the applicant (see paragraph 17 above). When the first set of deportation and detention orders were issued on 11 June 2010 on the ground that the applicant was in Cyprus unlawfully, these proceedings were still pending (see paragraphs 17-22 above). Even though it appears that an internal note had been prepared a few days before by an officer of the Asylum Service with a negative proposal, no formal decision had been taken at this stage (see paragraph 18 above). The Reviewing Authority gave its decision on 30 September 2010 after having taken up the matter from the Asylum Service (see paragraph 22 above). The Court notes in this connection that under domestic law, proceedings before the Asylum Service and the Reviewing Authority are suspensive in nature. Consequently, as admitted by the Government in their observations of 20 September 2011 (see paragraph 182 below) a mistake had been made by the authorities as, at the time, the applicant had been in Cyprus lawfully. He should not, therefore, have been subject to deportation. 135. The Government argued that the applicant should have lodged a recourse with the Supreme Court seeking the annulment of the deportation orders and that he should have applied for a provisional order to suspend his deportation in the context of those proceedings. The Court observes, however, that neither a recourse against deportation and detention orders, nor an application for a provisional order in the context of such proceedings, has automatic suspensive effect. Indeed, the Government have conceded this. 136. The Government emphasised that an application for a provisional order was suspensive “in practice”. In particular, as a matter of administrative practice, the authorities refrained from removing the person concerned until a decision had been given by the Supreme Court on the application or, in the event of an agreement being reached between the parties entailing the withdrawal of the application and an early hearing, until the end of the main proceedings. 137. The Court reiterates, however, that the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. This is one of the consequences of the rule of law, one of the fundamental principles of a democratic society, which is inherent in all the Articles of the Convention (see, mutatis mutandis, Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). The Court has, therefore, rejected similar arguments put before it in other cases concerning deportation advocating the sufficiency of a suspensive effect in “practice” (see, for example, Gebremedhin, § 66; and Čonka, §§ 81-83 both cited above). It has further pointed out the risks involved in a system where stays of execution must be applied for and are granted on a case-by-case basis (see Čonka, cited above, § 82). 138. Given the above, the applicant cannot be found to be at fault for not having brought such proceedings (see, mutatis mutandis, Diallo, cited above, § 78). 139. The Court further points out that the deportation and detention orders were obviously based on a mistake made by the authorities. Since the applicant ’ s asylum application was being re-examined, he continued to have the benefit of suspensive effect ( see paragraphs 74, 127 and 134 above). Yet, despite this the orders against the applicant continued to remain in force for more than two months, during which the re-examination of his asylum claim was still taking place, and the applicant was not removed to Syria during this period solely because of the application of Rule 39. No effective domestic judicial remedy was available to counter this error. Moreover, the Court notes the lack of any effective safeguards which could have protected the applicant from wrongful deportation at that time. 140. The Court also observes that the deportation and detention orders of 11 June 2010 were subsequently annulled by the authorities and were replaced on 20 August 2010 by new orders issued on different grounds (see paragraph 48 above). Likewise, these too could not be executed until the re ‑ examination of his asylum claim by the authorities had been completed (see the judgment of the Supreme Court in Asad Mohammed Rahal, paragraph 74 above). Following the Reviewing Authority ’ s decision of 30 September 2010, however, the applicant was no longer authorised to remain in the country. Although the applicant filed a recourse before the Supreme Court against that decision, those proceedings were not automatically suspensive. Furthermore, in so far as the Government argue that the applicant should have filed an application for a provisional order to suspend his deportation in the course of those proceedings, the Court has already found that such an application does not have automatic suspensive effect (see paragraph 135 above). A recourse against the new orders would also suffer from the same shortcoming. As a result, the applicant could have been removed before the Supreme Court reached a decision on the matter. 141. The Court concludes therefore that the applicant did not have an effective remedy in relation to his complaint under Articles 2 and 3 of the Convention. 142. There has therefore been a violation of Article 13 of the Convention. 143. In view of the above conclusion, the Court does not need to examine the applicant ’ s remaining complaint under this head concerning the scope of judicial review proceedings. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 144. The applicant complained that he did not have an effective remedy at his disposal to challenge the lawfulness of his detention. He relied on Article 5 § 4 of the Convention, which provides as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 145. The Government contested that argument. A. Admissibility 146. The Government submitted that the applicant had not exhausted domestic remedies as he had failed to lodge a recourse under Article 146 of the Constitution challenging the lawfulness of the decision to detain and deport him. 147. The applicant submitted in reply that this remedy was incompatible with Article 5 § 4 both in terms of “speediness” and scope. 148. The Court finds that the issue raised by the Government ’ s plea of non- exhaustion of domestic remedies in reality goes to the merits of Article 5 § 4, namely, whether or not the applicant had at his disposal during his detention a remedy which would have provided him with an adequate and speedy judicial review of the lawfulness of his detention. The Court will therefore address this issue when examining the substance of the applicant ’ s complaint under this provision. 149. It further notes that the applicant ’ s complaint is not manifestly ill- founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 150. The applicant submitted that there were no effective domestic remedies complying with the requirements of Article 5 § 4 of the Convention. First of all, he claimed that recourse proceedings before the Supreme Court against deportation and detention orders were excessively long and did not respect the requirement of speediness. In this connection, the applicant maintained that the average time for a recourse was one and a half to two years at first instance and three to four years on appeal. The applicant criticised the data provided by the Government, arguing that there was no information concerning the methodology used to calculate the average length of such proceedings. In particular, the Government had omitted to explain whether the average length of eight months provided in the data only concerned recourses which followed their normal course, or also recourses which were eventually withdrawn or in which an application for a provisional order had been filed and then withdrawn in exchange for an “accelerated” procedure. Further, the Government had failed to provide data on the length of appeal proceedings. In this respect, the applicant asserted that there was a significant delay in the examination of appeals. He noted that he had managed to find four cases in which appeal proceedings had been decided between 2008 and 2011, the average length of which had been three years. The applicant admitted, however, that he was not in a position to say whether the persons concerned had remained in detention during that period. 151. As to the examples of recourses relied on by the Government (see paragraphs 77-79 above), the applicant submitted that these did not give an accurate picture of the situation. Four out of the five recourses had been eventually withdrawn by the persons concerned. The remaining one mainly concerned the lawfulness of the Reviewing Authority ’ s decision and not of the deportation and detention orders (see paragraph 7 9 above). A further three of the recourses could not be considered as separate cases as they involved members of the same family and had been jointly examined. 152. The applicant also referred to four recourses in which the persons concerned had submitted an application for a provisional order and then withdrawn it in exchange for what the Government had claimed to be a speedy procedure. In these cases, the recourses had not been withdrawn and the duration of the proceedings ranged from approximately four months to over six months (see paragraphs 80-83 above). 153. The applicant submitted that it was not reasonable to expect applicants in detention and deportation cases, with no means of subsistence, to have to lodge an ex parte application for a provisional order on top of a recourse, only to subsequently withdraw it in order to secure suspension of their deportation and a speedy determination of the legality of the deportation and detention orders. The applicant pointed out in this respect that there were practical difficulties associated with filing ex parte applications in deportation cases. 154. The applicant also challenged the remedy in terms of its accessibility. First of all, the letters sent out by the authorities notifying the issuance of the deportation and detention orders made no mention of the remedies available to challenge their lawfulness. Secondly, although it was possible in view of recent amendments to the relevant domestic legislation to apply for legal aid in deportation and detention cases, this was, as in asylum cases, rarely granted (see paragraphs 72, 76 and 124 above). 155. Besides these difficulties and the lack of speediness, the applicant argued that a recourse under Article 146 of the Constitution was also deficient in scope, as the Supreme Court ’ s jurisdiction was limited to examining the legality of the case and not its substance. Consequently, even if successful, this procedure was not always capable of leading to the release of the person concerned. The applicant explained that in the event of an annulment by the Supreme Court of deportation and detention orders, the authorities would simply issue new deportation and detention orders, taking care to ensure that they did not commit the same errors, and the detention would continue on the basis of the new orders. A fresh recourse would then have to be filed against the new decision. 156. The applicant went on to stress that the domestic law did not provide for periodic review of detention for the purpose of deportation. Once deportation and detention orders were issued they were only subject to judicial review by the Supreme Court through the Article 146 procedure. A habeas corpus application could only be brought in order to challenge the lawfulness of detention in terms of its length. Although the applicant had used this remedy, he had been unsuccessful (see paragraphs 50-55 above). Referring to his habeas corpus application, the applicant, in his observations of 12 August 2012, complained that these proceedings did not comply with the requirements of Article 5 § 4. 157. Finally, the applicant referred to the recent report by Amnesty International on the detention of migrants and asylum seekers in Cyprus, (see paragraphs 100-104 above). (b) The Government 158. For their part, the Government submitted that the applicant had had an effective procedure at his disposal through which he could have obtained his speedy release. In particular, the applicant could have lodged a recourse under Article 146 of the Constitution challenging the lawfulness of the decision to detain and deport him. If he had succeeded, the relevant order would have been annulled and he would have been released. The applicant could also have filed, in the context of the recourse, an application for a provisional order seeking the suspension of his deportation. If the applicant had taken these steps he could have been released quickly. In this respect, the Government repeated their submissions under Article 13 of the Convention that, as a matter of administrative practice, if the applicant had agreed to an early hearing of the recourse and withdrawn his application for a provisional order, the authorities would have suspended the execution of the deportation order and the proceedings would have been expedited (see paragraphs 127-129 above). The lawfulness of the deportation and detention orders would have been adjudicated in a matter of weeks. The Government referred to the records of the proceedings in a number of recourses as examples of expedited judicial review proceedings (see paragraphs 77-79 above). 159. The Government also submitted that according to official data the average length of first-instance proceedings in recourses against deportation and detention orders in the years 2010 and 2011 had been eight months. However, no data were available concerning appeal proceedings as, according to the Supreme Court registry records, only two appeals had been lodged during these two years. One had been withdrawn and one was still pending. 2. The Court ’ s assessment (a) General principles 160. Article 5 § 4 entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that the arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see, as a recent authority, Stanev v. Bulgaria [GC], no. 36760/06, § 168, ECHR 2012 ). The remedies must be made available during a person ’ s detention with a view to that person obtaining speedy judicial review of the lawfulness of his or her detention capable of leading, where appropriate, to his or her release (see Louled Massoud v. Malta, no. 24340/08, § 39 July 2010 ). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see Čonka, cited above, §§ 46 and 55). The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, amongst many authorities, Nasrulloyev v. Russia, no. 656/06, § 86, 11 October 2007, and Kadem v. Malta, no. 55263/00, § 41, 9 January 2003). 161. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009 with further references). 162. Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful (see Sarban v. Moldova, no. 3456/05, § 118, 4 October 2005, and Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000 ‑ III ). The Court has laid down strict standards in its case-law concerning the question of State compliance with the speed requirement. In the cases of Sarban and Kadem (both cited above) and Rehbock v. Slovenia ( no. 29462/95, § 84, ECHR 2000-XII ), for example, the Court considered that time ‑ periods of twenty-one, seventeen and twenty-three days, respectively, were excessive. 163. The question whether the right to a speedy decision has been respected must – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – be determined in the light of the circumstances of each case (see Rehbock, cited above; G.B. v. Switzerland, no. 27426/95, § 33, 30 November 2000; and M.B. v. Switzerland, no. 28256/95, § 37, 30 November 2000 ). An applicant, however, will not be required to pursue a particular remedy where the Court finds from the information and submissions before it that it would not have ensured a speedy review of his or her detention (see, for example, Louled Massoud, cited above, §§ 44-45, 27 July 2010, and Sabeur Ben Ali v. Malta, no. 35892/97, § 40, 29 June 2000). (b) Application to the present case 164. Turning to the present case, the Court observes at the outset that the fact that the applicant was released on 3 May 2011 upon being granted refugee status does not render his complaint under this provision devoid of purpose bearing in mind that he was detained for more than ten months (see inter alia, Sadaykov v. Bulgaria, no. 75157/01, § 33, 22 May 2008; Čonka, cited above, § 55, in limine; and Louled Massoud, § 14, cited above; see also, mutatis mutandis, Kormoš v. Slovakia, no. 46092/06, §§ 93-94, 8 November 2011 ). 165. The Court notes that under domestic law, the lawfulness of deportation and detention can only be examined in the context of a recourse brought under Article 146 of the Constitution within the required time- limit (see paragraphs 67-70 above). The Court has already examined the effectiveness of this remedy in so far as deportation is concerned for the purposes of Article 13 taken together with Articles 2 and 3. It must, however, now consider in so far as detention is concerned whether it meets the requirements of Article 5 § 4 of the Convention. 166. The applicant did not make use of this remedy to challenge the detention orders issued against him as he claimed that it was deficient in speed and scope for the purposes of Article 5 § 4. 167. As regards the requirement of “speediness”, the Court notes that according to the Government ’ s submissions the average length of a recourse challenging the lawfulness of a detention order, as also, at the same time, of a deportation order, is eight months at first instance (see paragraph 159 above). This is undoubtedly far too long for the purposes of Article 5 § 4. 168. The Court has also examined the examples relied on by the Government in support of their contention that such proceedings can be expedited. These, however, are not at all satisfactory, even though the proceedings were of a lesser duration than the average given. The Court observes in this connection that the shortest time taken for the proceedings in these examples lasted one month and seventeen days and two months and twenty days respectively (see paragraphs 77-78 above). These periods are still excessive, bearing in mind the strict standards set down by the Court in its case-law (see paragraph 162 above) and the fact that they ended due to a withdrawal of the recourse by the persons concerned, without judgment having been given on the lawfulness of the decisions to deport and detain them. Not even one hearing had been held within the respective periods. The Court also notes that the applicants in these cases had to reach an agreement with the Government in order to expedite the proceedings. The Court reiterates in this respect that under Article 5 § 4 of the Convention the existence of domestic remedies must be sufficiently certain ( see paragraph 160 above) and that “speediness” is an indispensable requirement of that provision, which does not depend on the parties reaching an agreement in the proceedings. 169. In view of the above considerations, the Court finds that pursuing a recourse would not have provided the applicant with a speedy review of the lawfulness of the decision to detain him, as required by Article 5 § 4 of the Convention. It is therefore unable to agree with the Government that the applicant should have tried that remedy. 170. Accordingly, the Court concludes that there has been a violation of Article 5 § 4 of the Convention. 171. Having regard to this finding, the Court does not consider it necessary to examine the remainder of the applicant ’ s complaints concerning the judicial review proceedings (see paragraphs 154-155 above) and those subsequently raised in his observations in relation to the habeas corpus proceedings (see paragraph 156 above). IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 172. The applicant further complained that his detention had been unlawful and therefore in breach of Article 5 § 1 (f) of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. The parties ’ submissions 1. The applicant 173. The applicant submitted that his detention from 11 June 2010 until 3 May 2011 had been arbitrary and contrary to Article 5 § 1 (f) of the Convention. First of all, he had been arrested on the above-mentioned date without a warrant even though he had not been arrested for committing a flagrant offence. Although the authorities claimed that the protesters, including the applicant, had committed a number of offences under, for example, the Public Roads Law, they had not arrested them on such grounds. Further, the authorities did not know at the time the names and particulars of the protesters and could not therefore have known whether they had been staying in Cyprus unlawfully. Consequently, until the deportation and detention orders were issued against him, his arrest and detention had not been in conformity with the procedural requirements of domestic law and Article 11 (3) of the Constitution (see paragraph 88 above). The applicant noted in this respect that in the light of the Government ’ s observations it was not at all clear on what grounds he had actually been arrested and detained during this period. 174. Secondly, the authorities had proceeded to issue deportation and detention orders against him under the Aliens and Immigration Law on the basis that he was an unlawful immigrant. Yet, according to the domestic law, the applicant had been lawfully residing in Cyprus as his asylum application was still pending with the Reviewing Authority. In fact, the decision of the Reviewing Authority had been taken on 30 September 2010, that is, more than three months after his arrest. Nonetheless, the applicant had been kept in detention throughout this period. 175. Thirdly, the new orders issued by the authorities on 20 August 2010 on public order grounds had been completely unjustified. The Government pleaded that the applicant had been dangerous to the public order and the security of the Republic but did not put forward any justification or evidence in this respect. In the applicant ’ s view the authorities had acted in bad faith and/or on the basis of misinformation. Furthermore, those orders had never been communicated to the applicant in accordance with section 14 (6) of the Aliens and Immigration Law. The applicant found out about the decision of the Minister of the Interior when he received a copy of the Government ’ s letter of 12 October 2010 to the Court informing the latter of the issuance of these orders ( see paragraphs 47 -48 above). 176. Even assuming, however, that his detention had been compatible with the domestic law, the applicant considered that it had ceased to be so because of its excessive duration. Unlike in the case of Chahal v. the United Kingdom (15 November 1996, Reports 1996 ‑ V), the length of detention in his case could not be justified on the basis of any exceptional circumstances. The authorities had not been able to deport the applicant only because of the Court ’ s interim measure. In addition, the maximum period of detention of six months, provided for in Directive 2008/115/ EC (see paragraphs 86 and 9 8 above) which had been directly applicable in domestic law, had elapsed. Despite this the authorities had continued to detain him. In the applicant ’ s view, his continued detention could only be considered as a form of punishment. The authorities could have released him and granted him a temporary residence permit on humanitarian grounds pending the examination of his case both domestically and by the Court. 2. The Government 177. The Government submitted that an unacceptable situation had been created by the protesters on one of the busiest streets of Nicosia, on which office blocks and public buildings were situated. It posed a risk to the health of both the public and the protesters themselves, it obstructed the free passage of traffic and pedestrians, it caused a public nuisance and it created a risk of spreading disease to members of the public who worked and lived in the area and who had complained to the authorities. The protesters had refused to co-operate with the authorities and efforts to persuade them to leave had been to no avail. 178. There had been two avenues open to the authorities: either to arrest the protesters for a number of flagrant criminal offences committed at the place of protest and punishable by imprisonment, for example, under the Public Roads Law (Cap. 83, as amended) and the Prevention of Pollution of Public Roads and Places Law (Law 19 (I)/92, as amended) (see paragraphs 91-92 above), or to take measures to peacefully remove the protesters. They had opted for the latter course of action in order to avoid a risk of a violent reaction or clashes and to enable a careful examination of the immigration status of each protester. It would have been impossible for the police to do an on-the-spot check. In taking their decision the police had also considered that there were women and children among the protesters. 179. The Government noted that on 11 June 2010 the police, in removing the protesters, including the applicant, had acted in the exercise of their duties under the Police Law (Law no. 73(I)/2004 as amended) in order to, among other things, prevent the commission of criminal offences and public nuisance, maintain order on public roads, streets, passages and places to which the public had access and regulate the maintenance of order in cases of obstruction of public roads and streets and other places to which the public had access (sections 24(2) and 29(1)(c) and (d) of the Law, see paragraphs 89-90 above). The aim of the police had been to remove the protesters peacefully and transfer them to the ERU headquarters in order to question them for the purpose of ascertaining their names and status and, in particular, to identify those whose asylum applications had been rejected and who were unlawfully residing in the Republic. The Government considered that it had been completely legitimate, in the course of an operation for the removal of the protesters from the street, to also try to identify any Kurds from Syria who had been staying in the Republic unlawfully following the rejection of their asylum applications. 180. The Government emphasised in this regard that neither the applicant nor the other protesters had been deprived of their liberty when they had been removed from the street and taken to the ERU headquarters along with the other protesters. Nor had they been deprived of their liberty at the headquarters during the examination of their papers for the purpose of determining their immigration status. The authorities had transferred the protesters, including the applicant, to the ERU headquarters for identification purposes and not to arrest and detain them (relying on X. v Germany, no. 8819/79, Commission decision of 19 March 1981, Decisions and Reports (DR) vol. 24, p. 158). They had not been kept in cells, they had not been handcuffed and they had been given food and drink. Those who had been identified as being lawfully resident in the Republic had gone home. The rest had been arrested. The applicant ’ s detention had commenced once he had been charged with the flagrant criminal offence of unlawful stay in the Republic and arrested on this ground. 181. In this connection, in their first set of observations to the Court dated 3 June 2011, the Government maintained that the applicant ’ s arrest and detention on the ground of unlawful stay had been lawful as it had been in conformity with domestic law and procedure. The applicant had been arrested on the ground that he had been a “prohibited immigrant” staying in the Republic unlawfully after the rejection of his asylum application. They noted in this respect that the criminal offence of unlawful stay was a flagrant offence punishable by imprisonment under section 19 (2) of the Aliens and Immigration Law. Article 11 (4) of the Constitution permitted arrest without a warrant for flagrant offences carrying a term of imprisonment. The deportation and detention orders had been issued on the same day, before the lapse of the twenty-four hour time-limit set by Article 11 (5) of the Constitution. His detention had continued on the basis of these orders for the purpose of effecting his deportation. 182. In their subsequent observations of 20 September 2011, however, the Government admitted that a mistake had been made with regard to the applicant. As his asylum application had been pending with the authorities at the time, the applicant had in fact at the time of his arrest been legally residing in the Republic. 183. The Government made no submissions, further to their letter of 12 October 2010 ( see paragraph 47 above), with regard to the new deportation and detention orders issued against the applicant on 20 August 2010 and his continued detention on that basis. They did not comment on whether the applicant had been given notice of those orders either. B. The Court ’ s assessment 184. The Court notes that the applicant ’ s complaint under Article 5 § 1 of the Convention can be divided into three parts that require separate examination: - the first part concerns his transfer, along with the other protesters, to the ERU headquarters on 11 June 2010 and his stay there pending his identification; - the second part concerns his detention on the basis of the deportation and detention orders issued against him on 11 June 2010 under section 6(1)(k) of the Aliens and Immigration Law; and - the third part concerns his detention on the basis of the deportation and detention orders issued against him on 20 August 2010 under section 6(1)(g) of the Aliens and Immigration Law. 1. The applicant ’ s transfer to and stay at the ERU headquarters on 11 June 2010 (a) Admissibility 185. The Court notes that the parties disagree on whether or not the applicant ’ s situation during this period amounted in practice to a deprivation of liberty. The Government dispute the applicant ’ s arguments and, hence, the applicability of Article 5 § 1 of the Convention to this period. 186. Article 5 § 1, which proclaims the “right to liberty”, is concerned with a person ’ s physical liberty. Its aim is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion. In determining whether someone has been “deprived of his liberty” within the meaning of Article 5 § 1, the starting -point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see, amongst many authorities, Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, 15 March 2012; Stanev, cited above, § 115, 17 January 2012; Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010; and Guzzardi v. Italy, 6 November 1980, §§ 92- 93). It is clear that the question whether there has been a deprivation of liberty is very much based on the particular facts of a case (see, for example, Austin, § 61, cited above). 187. In determining whether or not there has been a violation of Convention rights it is often necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation ( for example, in relation to Article 5 § 1, see, Creangă v. Romania [GC], no. 29226/03, § 91, 23 February 2012 and Van Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A no. 50). The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court ’ s conclusion as to the existence of a deprivation of liberty. 188. The Court notes that in cases examined by the Commission, the purpose of the presence of individuals at police stations, or the fact that the parties concerned had not asked to be allowed to leave, were considered to be decisive factors. Thus, children who had spent two hours at a police station in order to be questioned without being locked up were not found to have been deprived of their liberty (see X. v. Germany, no 8819/79, cited above) nor was an applicant who had been taken to a police station for humanitarian reasons, but who was free to walk about on the premises and did not ask to leave (see Guenat v. Switzerland (dec.), no. 24722/94, Commission decision of 10 April 1995). Likewise, the Commission attached decisive weight to the fact that an applicant had never intended to leave the courtroom where he was taking part in a hearing (see E.G. v. Austria, no. 22715/93, Commission decision of 15 May 1996). 189. The case-law has evolved since then, as the purpose of measures taken by the authorities depriving applicants of their liberty no longer appears decisive for the Court ’ s assessment of whether there has in fact been a deprivation of liberty. To date, the Court has taken this into account only at a later stage of its analysis, when examining the compatibility of the measure with Article 5 § 1 of the Convention (see Creangă, § 93, cited above; Osypenko v. Ukraine, no. 4634/04, §§ 51-65, 9 November 2010; Salayev v. Azerbaijan, no. 40900/05, §§ 41-42, 9 November 2010; Iliya Stefanov v. Bulgaria, no. 65755/01, § 71, 22 May 2008; and Soare and Others v. Romania, no. 24329/02, § 234, 22 February 2011). 190. Furthermore, the Court reiterates its established case-law to the effect that Article 5 § 1 may also apply to deprivations of liberty of a very short length (see, among many authorities, Brega and Others v. Moldova, no. 61485/08, § 43, 24 January 2012; Shimovolos v. Russia, no. 30194/09, §§ 48-50, 21 June 2011; Iskandarov v. Russia, no. 17185/05, § 140, 23 September 2010; Rantsev v. Cyprus and Russia, no. 25965/04, § 317, ECHR 2010 (extracts); and Foka v. Turkey, no. 28940/95, § 75, 24 June 2008). 191. Turning to the facts of the present case, the Court observes that according to the available information a large-scale operation was carried out on 11 June 2010 at 3 a.m. involving about 250 police officers, in order to remove the protesters from the place of protest (see paragraph 36 above). The applicant and another 148 protesters were boarded on buses and taken to the ERU headquarters where they remained for a number of hours pending their identification and ascertainment of their immigration status. 192. The Court first notes in this respect that in contrast to the exceptional circumstances examined by the Court in Austin (cited above, §§ 66 and 68), there is no evidence in the instant case that the police were faced, at the place of protest, with a volatile or dangerous situation that gave rise to a real and immediate risk of violent disorder or serious injury to persons or property. 193. Second, although it appears that there was no resistance on the part of the protesters, it cannot be said that they had in the circumstances a real choice and that they boarded the buses and remained on the police premises voluntarily. The Court notes in this respect that the operation took place at 3 a.m., at a time when the majority of the protesters were sleeping (see paragraph 36 above). Bearing in mind the nature, scale and aim of the operation, the manner in which it was carried out and the overall measures taken by the authorities, it would be unrealistic to assume that the protesters were free to refuse to board the buses or to leave the police headquarters. Nor have the Government indicated that they were. It is clear that the aim of the operation was also to identify the protesters who were staying in the country unlawfully with a view to deporting them. Only those who were found to be lawfully residing in Cyprus were able to leave the premises. There was undoubtedly an element of coercion, which in the Court ’ s view is indicative of a deprivation of liberty within the meaning of Article 5 § 1. The fact that nobody had been handcuffed, put in cells or otherwise physically restrained during the period in question does not constitute a decisive factor in establishing the existence of a deprivation of liberty ( see I.I. v. Bulgaria, no. 44082/98, § 87, 9 June 2005, and Osypenko, cited above, § 32). 194. The Court also refers, in this respect, to the instructions received by the police to use “discreet methods of arrest ” (see paragraph 31 above). 195. In these circumstances the Court considers that the applicant ’ s transfer to and stay in the ERU headquarters during this period amounted to a de facto deprivation of liberty within the meaning of Article 5 § 1 and that this provision applies to his case ratione materiae. 196. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits 197. The Court must now determine whether the applicant ’ s detention was compatible with Article 5 § 1. It reiterates that in order to comply with this provision, the detention in issue must first of all be “lawful”. This must include the observance of a procedure prescribed by law. In this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see Benham v. the United Kingdom, 10 June 1996, § 40, Reports 1996 ‑ III ). However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion. 198. The Court must, moreover, ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see Zervudacki v. France, no. 73947/01, § 43 and Baranowski v. Poland, §§ 50 ‑ 52, cited above ). 199. In the present case, the Government have submitted that the applicant, along with the other protesters, was not deprived of his liberty during this period (see paragraph 180 above). It appears that for this reason, although they have given explanations for the actions of the authorities, they have not relied on any particular provision as a legal basis for the deprivation of liberty. 200. In this particular regard, the Government have submitted that the authorities opted for the peaceful removal of the protesters and that the police acted in exercise of their duties under the Police Law in order to, inter alia, prevent the commission of certain criminal offences and public nuisance and to maintain order on public roads and in public areas (see paragraphs 89-90 above). The specific provisions referred to by the Government concern the powers and duties of police officers to arrest people they are lawfully authorised to arrest and their duty to preserve order on public roads and to regulate movement, but it has not been claimed that any of these powers were actually used to effect the arrest of the applicant and the other protesters. 201. At the same time, the Government submitted that the operation also aimed to identify the protesters and ascertain their legal status. The authorities suspected that a number of the protesters were failed asylum seekers and, therefore, “ prohibited immigrants ”, but considered that it would have been impossible to carry out an effective on-the-spot inquiry without provoking a violent reaction. Consequently, all the protesters were taken to the ERU headquarters for identification purposes and to determine whether or not they were unlawful immigrants. The Government have not, however, acknowledged that there was a deprivation of liberty on this ground. 202. The Court is conscious of the difficult situation that the Cypriot authorities found themselves in and that an operational decision had to be taken. This, however, cannot justify the adoption of measures giving rise to a deprivation of liberty without any clear legal basis. 203. It follows that the applicant ’ s deprivation of liberty during this period was contrary to Article 5 § 1 of the Convention. There has, therefore, been a violation of this provision. 2. The applicant ’ s detention on the basis of the deportation and detention orders issued on 11 June 2010 and 20 August 2010 (a) Admissibility 204. The Court notes that it is not disputed that the applicant was deprived of his liberty from 11 June 2010 until 3 May 201 1 on the basis of deportation and detention orders issued under the Aliens and Immigration Law. 205. The Court further notes that the applicant ’ s complaints under this head are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. (b) Merits 206. The Court is satisfied that the applicant ’ s deprivation of liberty from 11 June 2010 to 3 May 2011 fell within the ambit of Article 5 § 1 (f) of the Convention as he was detained for the purpose of being deported from Cyprus. This provision does not require that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c) (see Chahal §§ 112-113 and Čonka, § 38, both cited above). All that is required under this provision is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (see Chahal, cited above, § 112). 207. The Court notes that Cypriot law allows for the possibility of detention with a view to deportation. The Court observes in this respect that both the decisions of 11 June and 20 August 2010 ordering the applicant ’ s detention and deportation were based on section 14 of the Aliens and Immigration Law, which permits the Chief Immigration Officer to order the deportation of any alien who is a prohibited immigrant and his or her detention in the meantime (see paragraph 63 above). 208. It follows that the issue to be determined is whether the applicant ’ s detention under that provision was “lawful”, including whether it complied with “a procedure prescribed by law” ( see paragraphs 197-198 above). i. The applicant ’ s detention between 11 June and 20 August 2010 on the basis of the deportation and detention orders of 11 June 2010 209. The Court notes that the applicant was charged on 11 June 2010 with the offence of unlawful stay and was detained, on the basis of deportation and detention orders issued on the same day, for a total of two months and nine days. These orders had been issued pursuant to section 6(1)(k) of the Aliens and Immigration Law on the ground that the applicant was a “ prohibited immigrant ” staying in the Republic unlawfully. However, it is clear from the information before the Court that this was not the case as, at the time, the re-examination of the applicant ’ s asylum application was still pending. Indeed, the Government admitted in their observations of 20 September 2011 that the applicant had been legally residing in the Republic and that a mistake was made by the authorities. 210. In these circumstances, the Court finds that during this period the applicant was unlawfully deprived of his liberty. There has therefore been a violation of Article 5 § 1 of the Convention. ii. The applicant ’ s detention between 20 August 2010 and 3 May 2011 on the basis of the deportation and detention orders of 20 August 2010 211. By a letter dated 12 October 2010, the Government informed the Court that on 17 August 2010 the Minister of Interior had declared the applicant an illegal immigrant on public order grounds under section 6(1)(g) of the Aliens and Immigration Law, on the basis of information that he had been involved in activities relating to the receipt of money from prospective Kurdish immigrants in exchange for securing residence and work permits in Cyprus. Deportation and detention orders had then been issued on 20 August 2010 on the basis of the above provision and the previous orders of 11 June 2010 were annulled (see paragraphs 47-48 above). The applicant was therefore detained on the basis of these orders for another eight months and twelve days until his release on 3 May 2011. The applicant, however, claims that the orders had not been communicated to him in accordance with domestic law and that he had found out about the decision of the Minister of the Interior following an exchange of information between the parties in the context of the Court proceedings. 212. The Court first observes that there does not appear to have been any follow-up to the allegations against the applicant so as to lend support to what was imputed to him. 213. Secondly, the Court notes that, according to section 14(6) of the Aliens and Immigration Law, a person against whom a detention and/or deportation order has been issued shall be informed in writing, in a language which he understands, of the reasons for the decision unless this is not desirable on public-security grounds (see paragraph 63 above). This provision affords certain minimum guarantees to persons against whom a decision to deport and/or detain has been taken (see the Supreme Court ’ s judgments in Uros Stojicic and Kamran Sharajeel, paragraph 64 above ). 214. The Government, on 12 October 2010, provided the Court with a copy of the deportation and detention orders, which were written in Greek. However, they have not submitted any evidence that the applicant was notified by the authorities of the issuance of these orders and the new grounds for his detention. Indeed, the Government have not made any submissions on this matter. 215. Consequently, in the absence of any evidence or explanation by the Government to the contrary, the Court finds that the applicant was not given notice of the new deportation and detention orders in accordance with section 14(6) of the Aliens and Immigration Law. Although section 14(6 ) provides an exception to this rule on public-security grounds, the Government have not pleaded this as a reason for not communicating the orders to the applicant. Nor can it be said, on the basis of the file in any event, that there was a potential public-security issue. 216. The Court therefore finds that the procedure prescribed by law was not followed (see Voskuil v. the Netherlands, no. 64752/01, §§ 81-83, 22 November 2007). There has accordingly also been a violation of Article 5 § 1 of the Convention in so far as this period of detention is concerned. C. Overall conclusion 217. The Court finds a violation of Article 5 § 1 of the Convention in respect of the applicant ’ s entire period of detention, namely, from 11 June 2010 until 3 May 2011 (see paragraphs 197 -203, 209-210 and 211 ‑ 216 above). V. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 218. The applicant complained that the authorities had not complied with the requirements of Article 5 § 2 of the Convention. This provision reads as follows: “ Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” 219. The Government contested that argument. A. Admissibility 220. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 221. First of all, the applicant submitted that he had not been informed of the grounds for his arrest either at the place of protest or when he was brought to the ERU headquarters. It was only on 14 June 2010, more than 72 hours after his arrest, that he had been informed orally that he would be deported to Syria on the same day. Relying on the Court ’ s judgment in Saadi v. the United Kingdom ([GC], no. 13229/03, ECHR 2008), the applicant pointed out that this could not be considered to be “prompt” and therefore in line with the requirements of Article 5 § 2. Although the applicant, along with a number of others, had submitted a Rule 39 request the day after his arrest, this had been due to the involvement of other members of the Kurdish community in Cyprus and the Yekiti Party who had been afraid that there was a serious possibility of deportation and instructed a lawyer to take action on behalf of those concerned. 222. Furthermore, the applicant pointed out that the deportation and detention orders had not been served on him. He had found out about them through his lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court. Likewise, the applicant had not been served with the letter of 11 June 2010. In this connection, the applicant noted that he had never refused to take receipt of any kind of information in writing. He also considered it strange that police officers in different detention centres had managed to co-ordinate and deliver all these letters to so many people on the same day. In any event, the letter addressed to the applicant was in English, a language that he could not understand. Moreover, it did not contain any information as to the remedies available for challenging the decision to detain and deport him. 223. Lastly, the applicant had not been notified of the new orders issued against him on 20 August 2010 but had found out about the decision of the Minister of the Interior when he received a copy of the Government ’ s letter of 12 October 2010 to the Court informing the latter of the issuance of those orders (see paragraphs 47 -48 above ). (b) The Government 224. The Government submitted that once he had been identified at the ERU headquarters, the applicant was arrested and charged with the flagrant offence of unlawful stay in the Republic. He had been told there and then of the reasons for his arrest and detention, namely, that he had been staying on the territory unlawfully and was therefore a “prohibited immigrant”. He had also been informed that he had been detained with a view to his deportation and that this was imminent. Further, he had been informed of his right, under the Law on the Rights of Persons who are Arrested and Detained (Law no. 163(1)/2005 ), to contact a lawyer of his own choice (see paragraph 93 above). As a result the applicant had been able to appoint a lawyer and apply to the Court for an interim measure. In any event, the Government considered that in view of the identification process at the ERU headquarters, during which the police had asked the applicant for his identity papers and questioned him about his immigration status, the reasons for his arrest and detention must have been evident to him. 225. In addition, the Government noted that a letter had been prepared in English by the Civil Registry and Migration Department informing the applicant of the authorities ’ decision to deport him and the reasons for that decision. The letter also informed the applicant that his temporary residence permit had been revoked and that he had the right to be represented before the authorities, to seek the services of an interpreter and to express possible objections to his deportation. The applicant had, however, refused to sign and receive the letter (see paragraph 44 above). 226. The Government did not make any submissions as to whether the applicant had been notified on 20 August 2010 of the new deportation and detention orders and, consequently, the change of the legal basis of his detention (see paragraph 183 above). 2. The Court ’ s assessment (a) General principles 227. The Court reiterates that paragraph 2 of Article 5 contains the elementary safeguard that anyone who has been arrested should know why he is being deprived of his liberty. This is a minimum safeguard against arbitrary treatment. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 anyone who is arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed are sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182). Anyone entitled to take proceedings to have the lawfulness of his detention speedily decided cannot make effective use of that right unless he is promptly and adequately informed of the reasons relied on to deprive him of his liberty (see Van der Leer v. the Netherlands, 21 February 1990, § 28, Series A no. 170 ‑ A). Further, if the grounds for detention change, or if new relevant facts arise concerning the detention, a detainee has a right to this further information (see X. v. the United Kingdom, no. 6998/75, Commission ’ s report of 16 July 1980, § 105, Series B no. 41). 228. The constraints of time imposed by the notion of promptness will be satisfied where the reasons for the arrest are provided within a few hours of arrest (see Kerr v. the United Kingdom (dec.), no. 40451/98, 7 December 1999, and Fox, Campbell and Hartley, cited above, § 41 ). A violation was found by the Court where seventy-six hours elapsed before the applicants were informed of the reasons of detention ( Saadi, §§ 55-56, cited above; see also Shamayev and Others v. Georgia and Russia, § 416, cited above, where the Court found a violation in respect of a four-day delay; and Rusu v. Austria, no. 34082/02, § 43, 2 October 2008 in respect of a ten-day delay). 229. As regards the manner of communicating the reasons for the arrest, Article 5 § 2 does not require the reasons to be given in writing to the detained person or otherwise in a particular form ( see Kane v. Cyprus (dec.), no. 33655/06, 13 September 2011, and X. v. Germany, no. 8098/77, Commission decision of 13 December 1978, DR 16, p. 111). Further, the reasons may be provided or become apparent in the course of post-arrest interrogations or questioning (see Kerr, cited above; Murray v. the United Kingdom, 28 October 1994, § 77, Series A no. 300 ‑ A; and Fox, Campbell and Hartley, § 41, cited above). 230. It should also be noted that when a person is arrested with a view to extradition, the information given may be even less complete (see Kaboulov v. Ukraine, no. 41015/04, §§ 143-144, 19 November 2009, with further references; Ryabikin v. Russia (dec.), no. 8320/04, 10 April 2007; and K. v. Belgium, no. 10819/84, Commission decision of 5 July 1984, DR 38, p. 230). A similar approach has been taken in deportation cases ( see, for example, Kane, cited above). (b) Application to the present case 231. In the present case on 11 June 2010 the applicant, along with the other protesters, was taken to the ERU headquarters and kept there for identification purposes. His detention continued on the basis of deportation and detention orders issued on the same day which remained in force until 20 August 2010. New orders were then issued on the latter date, changing the grounds for the applicant ’ s detention. 232. In view of the above, the Court considers that the applicant ’ s complaint under this provision is twofold. 233. First of all, the Court has to examine whether the applicant was informed of the reasons for his detention on 11 June 2010. In this respect, the Court notes that the parties differ as to the exact date when the applicant found out about the reasons for his detention. On the one hand, the applicant claimed that he had not been informed orally of the grounds for his arrest and detention until 14 June 2010, that is, after more than seventy-two hours. He also stated in that connection that he had not received any information in writing. According to the Government, on the other hand, the applicant had been informed orally on 11 June 2010, once his identity had been checked, of the grounds for his arrest and detention as well as the fact that he was facing imminent deportation. They also claimed that in any event, these grounds must have become apparent to him during the identification procedure. As to the written reasons, they stated that attempts had also been made to serve the applicant with the relevant letter. 234. The Court observes that upon his transfer to the ERU headquarters the applicant, along with the rest of the protesters, underwent an identification procedure which was aimed at ascertaining whether any of them were staying in Cyprus unlawfully. The Court has no reason to doubt, in the circumstances, that the applicant was informed at the time that he had been arrested on the ground of unlawful stay or that he at least understood, bearing in mind the nature of the identification process, that the reason for his arrest and detention related to his immigration status. In this connection, the Court notes that the applicant filed a Rule 39 request, along with a number of other protesters, the very next day, seeking the suspension of their deportation. A reading of this request indicates that they were all aware of the fact that they were detained for the purpose of deportation. 235. The foregoing considerations are sufficient to enable the Court to conclude that the requirements of Article 5 § 2 of the Convention were complied with. 236. There has accordingly been no violation of this provision as regards the first part of the applicant ’ s complaint. 237. The second issue under this provision concerns the notification of the applicant of the new grounds for his detention on 20 August 2010. However, having regard to its findings under Article 5 § 1 of the Convention pertaining to the applicant ’ s detention on this new basis (see paragraphs 2 11-216 above), the Court considers that it is not necessary to examine this part of the case under Article 5 § 2 as well. VI. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 4 TO THE CONVENTION 238. Lastly, the applicant complained of a violation of Article 4 of Protocol No. 4 in that the authorities were going to deport him and others collectively without having carried out an individual assessment and examination of his case. This provision provides as follows: “Collective expulsion of aliens is prohibited.” A. Admissibility 239. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 240. The applicant, relying on the Čonka judgment (cited above), submitted that he had been the subject of a collective expulsion operation. In his view, the intention of the authorities had been to deal with a group of individuals, namely Syrian Kurds, collectively. This had been evident from all the circumstances of the case. The relevant meetings that had been held by the authorities concerned the handling of the situation of Syrian Kurdish failed asylum - seekers. The Minister of the Interior had given instructions to proceed with the deportation of Syrian Kurdish failed asylum-seekers with the exception of those who were Ajanib or Mahtoumeen. The police had been instructed to use discreet methods of arrest and execute the deportation orders starting with the leaders of the protest. As a result, the police had carried out an operation on 11 June 2010 against the whole group of protesters, including women and children. According to the Government only those whose asylum applications had still been pending were released. The rest had been kept in detention pending deportation. However, in reality, the asylum procedure had not been completed for the applicant as well as a number of other protesters whom the Government had intended to deport. If it had not been for the application of Rule 39 by the Court they would all have been deported. In fact, some of the protesters had been released by the authorities following the application of Rule 39 and had had their deportation orders annulled. The applicant also noted that the authorities had issued deportation orders against stateless Syrian Kurds and that some of the asylum-seekers concerned had had their asylum applications dismissed purely on procedural grounds without having benefited from an examination of the merits of their claim. 241. The applicant further pointed out that everyone had been arrested at the same time and had been informed orally of the same thing, namely, that they would be deported. The letters prepared by the authorities had been couched in identical terms and had therefore just been a formality. The same could be said for a number of the letters sent, requesting the individuals concerned to make arrangements to depart from Cyprus, as they had been issued just before the operation was carried out or just after and, in one case, even after the person in question had been sent back to Syria. 242. Consequently, it could not be said in the circumstances that an individual examination of each case had taken place. The applicant submitted therefore that all the elements indicated that the authorities had carried out a collective expulsion operation in violation of Article 4 of Protocol No. 4. (b ) The Government 243. The Government submitted that the authorities had carried out a detailed individual examination of the immigration status of all the protesters in order to ascertain whether or not they were staying in the Republic unlawfully. Letters proposing detention and deportation had been issued on the same day and separate deportation and detention orders had then been issued against each person. Although the instructions given by the Minister of the Interior to the authorities had been that the deportation of Kurdish failed asylum-seekers from Syria should go ahead in the normal way, these instructions could not have been enforced without the issuing of deportation and detention orders. The latter had been issued on the ground of unlawful stay and not on the basis of the aforementioned instructions. The authorities had already been searching for a number of people who were among the protesters and had been staying in Cyprus unlawfully. Some of them had already been asked to leave the country following the rejection of their asylum applications. 244. The authorities would have therefore proceeded in any event to deport these individuals once traced, even if the Minister had not given the relevant instructions. The Government therefore maintained that it had acted in compliance with Article 4 of Protocol No. 4. 2. The Court ’ s assessment (a) General principles 245. According to the well-established case ‑ law of the Commission and the Court, collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure of the competent authority compelling aliens, as a group, to leave the country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien in the group ( see, for example, Hirsi Jamaa and Others v. Italy, [GC], no. 27765/09, §§ 166-167, ECHR 2012; Čonka, cited above; § 59, Ghulami v. France (dec), no. 45302/05, 7 April 2009; Sultani v. France, no. 45223/05, § 81, ECHR 2007 ‑ IV (extracts); Davydov v. Estonia (dec), no. 16387/03, 31 May 2005; Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; A. and Others v. the Netherlands, no. 14209/88, Commission decision of 16 December 1988; O. and Others v. Luxembourg, no. 7757/77, Commission decision of 3 March 1978; K.G. v. the F.R.G ., no. 7704/76, Commission decision of 1 March 1977; and Henning Becker v. Denmark, no. 7011/75, Commission decision of 3 October 1975). It can be derived from this case-law that the purpose of Article 4 of Protocol No. 4 is to prevent States from removing certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority (see Hirsi, cited above, §177 ). 246. The fact, however, that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see the judgments in Hirsi, § 184 and Sultani, § 81, both cited above; the Court ’ s decisions in Ghulami and Andric, both cited above; and the Commission ’ s decisions in Tahiri v. Sweden, no. 25129/94, decision of 11 January 1995 and B. and others v. the Netherlands, no. 14457/88, decision of 16 December 1988). 247. Moreover, there will be no violation of Article 4 of Protocol No. 4 if the lack of an expulsion decision made on an individual basis is the consequence of an applicant ’ s own culpable conduct (see Berisha and Haljiti v. “the former Yugoslav Republic of Macedonia”, no. 18670/03, decision of 16 June 2005, where the applicants had pursued a joint asylum procedure and thus received a single common decision, and Dritsas v. Italy (dec), no. 2344/02, 1 February 2011, where the applicants had refused to show their identity papers to the police and thus the latter had been unable to draw up expulsion orders in the applicants ’ names). 248. The Court observes that, to date, it has found a violation of Article 4 of Protocol No. 4 in only two cases. First, in Čonka, which concerned the deportation of Slovakian nationals of Roma origin from Belgium to Slovakia, the Court found a breach because the procedure followed by the authorities did not enable it to eliminate all doubt that the expulsion might have been collective. This view was taken on the grounds that the applicants ’ arrest and consequent expulsion was ordered for the first time in a decision of 29 September 1999 on a legal basis unrelated to the requests for asylum, and in view of the large number of people of the same origin who had suffered the same fate as the applicants. The Court added that the doubt was reinforced by a series of factors: “ ... firstly, prior to the applicants ’ deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation ...; secondly, all the aliens concerned had been required to attend the police station at the same time; thirdly, the orders served on them requiring them to leave the territory and for their arrest were couched in identical terms; fourthly, it was very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed.” 249. In these circumstances, the Court concluded that the procedure followed by the Belgian authorities had not afforded sufficient guarantees ensuring that the personal circumstances of each of those concerned had been genuinely and individually taken into account (§ 63). 250. The Court considered that the measures taken on 29 September 1999 had to be seen in isolation from the earlier decisions regarding the asylum procedure in which the applicants ’ individual circumstances had been examined and which, according to the minority view, provided sufficient justification for the expulsion (see the separate opinions of Judge Velaers and Jungwiert joined by Judge Kūris). 251. The recent case of Hirsi (cited above, §§ 166-186 ) concerned the return of migrants, intercepted on the high seas by Italian naval vessels, to Libya, which was the country of their departure. The Court came without difficulty to the conclusion that there had been a clear violation of Article 4 of Protocol No. 4. It first ruled on the complicated issue of the extraterritorial applicability of Article 4 of Protocol No. 4 which arose in that case. Once it had found that this provision was applicable, the violation was self-evident, as the transfer of the applicants to Libya had been carried out without any form of examination of each applicant ’ s individual situation. It was not disputed that the applicants had not undergone any identification procedure by the Italian authorities, who restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers. In the Court ’ s view this was sufficient to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination (§§ 185-186). (b) Application of the above principles 252. In the instant case, the Court notes that an identification procedure in respect of the 149 Syrian Kurd protesters was carried out on 11 June 2010 at the ERU headquarters. Upon arrival at the headquarters registration took place and the status of each person was then examined using computers which had been specially installed the day before. According to the Government, this procedure revealed that seventy-six adults, along with their thirty children, were staying in the Republic unlawfully after having had their asylum applications rejected or their files closed. In this connection, the Court observes that it is clear from the information before it that their asylum applications had been dealt with on an individual basis over a period of more than five years. For those in respect of which the asylum procedure had been completed, the asylum applications had either been dismissed after an examination of their personal circumstances and any evidence they had provided or the files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals individually examined and dismissed. Separate letters had been sent out by the asylum authorities to the individuals concerned, informing them of the relevant decisions. 253. Deportation and detention orders had already been issued in respect of some of the persons concerned. Orders against the remainder were issued on 11 June 2010. The authorities had carried out a background check with regard to each person before issuing the orders and separate deportation and detention orders were issued in respect of each person. Individual letters were also prepared by the Civil Registry and Migration Department informing those detained of the authorities ’ decision to detain and deport them. 254. It is clear from the above that all those concerned did have an individual examination of their personal circumstances. As a result of this examination some of the persons arrested were allowed to return home as their immigration status was found to be in order and thus their presence on Cypriot territory was lawful. In these circumstances, the fact that all the persons concerned were taken together to the ERU headquarters and that the authorities decided to deport them in groups did not render their deportation a collective measure within the meaning attributed to that term by the Court ’ s case-law. Similarly, the fact that the deportation orders and the corresponding letters were couched in formulaic and, therefore, identical terms and did not specifically refer to the earlier decisions regarding the asylum procedure is not itself indicative of a collective expulsion. What is important is that every case was looked at individually and decided on its own particular facts (see Andric, cited above ). Although not expressly stated in the deportation orders and letters, the decision to deport was based on the conclusion that the person concerned was an illegal immigrant following the rejection of his or her asylum claim or the closure of the asylum file. Although a mistake was made in relation to the status of some of the persons concerned, including that of the applicant (see paragraphs 58 and 134 above) this, while unfortunate, cannot be taken as showing that there was a collective expulsion. 255. In view of the foregoing, the Court is not persuaded that the measure taken by the authorities reveals the appearance of a collective expulsion within the meaning Article 4 of Protocol No. 4. There has therefore not been a violation of this provision. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 256. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 257. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage. 258. The Government contested this claim in so far as it concerned Articles 2 and 3 of the Convention as the applicant had not been deported. They also considered that the claim was excessive. 259. Having regard to the nature of the violations found in the present case and the relevant case-law, the Court, ruling on an equitable basis as required under Article 41, awards the amount claimed by the applicant under this head in full. B. Costs and expenses 260. The applicant also claimed EUR 1,700 plus VAT for costs and expenses incurred before the Court, less the sum granted as legal aid by the Council of Europe. In this respect he submitted that this was the amount agreed upon with his representative and it represented the sum normally awarded for costs by the Supreme Court in successful recourse proceedings. 261. The Government contested the applicant ’ s claim and maintained that it was excessive. 262. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant has failed to provide any supporting documents – such as itemised bills or invoices – substantiating his claim (Rule 60 §§ 1 and 2 of the Rules of Court). The Court accordingly makes no award under this head. C. Default interest 263. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | Overall, the Court concluded that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention in respect of the applicant’s entire period of detention as the domestic authorities had not effected his detention in accordance with a procedure prescribed by law. The only recourse in domestic law that would have allowed the applicant to have had the lawfulness of his detention examined would have been one brought under Article 146 of the Constitution. The Court held that the average length of such proceedings, eight months at the relevant time, was undoubtedly too long for the purposes of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention. Accordingly, there had been a violation of that provision. |
240 | The definition of idem | THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 87. The applicants alleged that the proceedings before the CONSOB had not been fair, and complained that that body lacked impartiality and independence. They relied on Article 6 of the Convention, the relevant parts of which read: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... ” 88. The Government contested the applicants ’ position. A. Admissibility 1. Whether Article 6 of the Convention applies in its criminal head (a) The parties ’ submissions i. The Government 89. The Government contended that the proceedings before the CONSOB did not relate to a “criminal charge” against the applicants. They noted that the offence prescribed by Article 187 ter of Legislative Decree no. 58 of 1998 was clearly classified as “administrative” under both domestic and European law; [the corresponding penalty] could be imposed by an administrative body at the close of administrative proceedings. 90. As to the nature of the offence, it included any conduct, even that of mere negligence, which was likely to provide erroneous signals or information to investors, without it being necessary that this be likely to trigger a significant change in the financial markets. It protected investors against any potential risk that might influence their choices and thus referred to interests other than those usually protected by criminal law. Finally, the sanctions that could be imposed affected only the assets of the person concerned and/or his ability to exercise managerial functions, and under no circumstances could they lead to a custodial sentence, even in the event of non-payment. They were not mentioned in an individual ’ s criminal record and usually concerned professional operators in the financial system rather than the population as a whole. 91. Moreover, the amount of the fines had been proportionate to the guilty party ’ s resources and financial strength; the present case concerned a financial operation which was aimed at gaining control of one of the largest vehicle manufactures in the world, and had cost more than EUR 500,000,000. In addition, the fines, the possible confiscation of the assets used to commit the office and the prohibition on exercising managerial functions were essentially intended to restore market confidence and reassure investors, by targeting the elements which had made it possible for the administrative offence to be committed (on this point, they also referred to the aims pursued by Directive 2003/6/EC). They were intended to make reparation and compensate for financial damage, and to prevent the guilty party from benefiting from the illegal activities. Furthermore, in the case of Spector Photo Group ( Spector Photo Group NV v Commissie voor het Bank, Financie -en Assurantiewezen, C-45/08., 23 December 2009), the European Court of Justice (ECJ) had accepted the coexistence, in this sector, of administrative and criminal sanctions. ii. The applicants 92. The applicants considered that although they were classified as “administrative” in domestic law, the sanctions imposed by the CONSOB ought to be considered as “criminal”, in the autonomous meaning of this concept in the Court ’ s case-law. The ECJ ’ s judgment in the case of Spector Photo Group, cited by the Government, did not take the opposite line, but merely stated that if a Member State had introduced the possibility of a criminal financial sanction, it was not necessary, for the purposes of assessing whether the administrative sanction was effective, proportionate and dissuasive, to take account of the level of that sanction. Moreover, in its judgment of 26 February 2013 in case C-617/10 ( Åklagaren v. Hans Åkerberg Fransson ), the ECJ had confirmed the following principles: (a) the applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter; (b) Article 50 of the Charter (guaranteeing the ne bis in idem principle) presupposes that the measures which are adopted against a defendant are of a criminal nature; (c) for the purpose of assessing whether tax penalties are criminal in nature, it is necessary to consider the legal classification of the offence under national law, the very nature of the offence, and the degree of severity of the penalty that the person concerned is liable to incur. 93. In the present case, the seriousness of the sanctions was clear, since the maximum sum that could be imposed was EUR 5,000,000. This primary sanction was supplemented by secondary penalties, such as temporary loss of entitlement (of up to three years) to hold administrative, managerial or supervisory roles in listed companies, temporary suspension (of up to three years) from professional bodies, and confiscation of the proceeds of the office and the assets used to commit it. Referring to the Court ’ s case-law in this area (in particular Dubus S.A. v. France, no. 5242/04, 11 June 2009; Messier v. France, no. 25041/07, 30 June 2001; and Menarini Diagnostics S.r.l. v. Italy, no. 43509/08, 27 September 2011), the applicants concluded that Article 6 was applicable in its criminal limb. (b) The Court ’ s assessment 94. The Court reiterates its established case-law that, in determining the existence of a “criminal charge”, it is necessary to have regard to three factors: the legal classification of the measure in question in national law, the very nature of the measure, and the nature and degree of severity of the “penalty” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). Furthermore, these criteria are alternative and not cumulative ones: for Article 6 to apply in respect of the words “criminal charge”, it suffices that the offence in question should by its nature be “criminal” from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by virtue of its nature and degree of severity, belongs in general to the “criminal” sphere. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” ( see Jussila v. Finland [GC], no. 73053/01, §§ 30 and 31, ECHR 2006-XIII, and Zaicevs v. Latvia, no. 65022/01, § 31, ECHR 2007-IX (extracts)). 95. In the present case, the Court first observes that the market manipulations with which the applicants were accused did not constitute a criminal offence in Italian law. Such conduct was in effect punished by a penalty which was classified as “administrative” by Article 187 ter § 1 of Legislative Decree no. 58 of 1998 (see paragraph 20 above). However, this was not decisive for the purposes of the applicability of Article 6 of the Convention in its criminal head, as the indications furnished by the domestic law have only a relative value (see Öztürk v. Germany, 21 February 1984, § 52, Series A no. 73, and Menarini Diagnostics S.r.l. , cited above, § 39). 96. As to the nature of the offence, it appears that the provisions which the applicants were accused of breaching were intended to guarantee the integrity of the financial markets and to maintain public confidence in the security of transactions. The Court reiterates that the CONSOB, an independent administrative body, has the task of protecting investors and ensuring the effectiveness, transparency and development of the stock markets (see paragraph 9 above). These are general interests of society, usually protected by criminal law (see, mutatis mutandis, Menarini Diagnostics S.r.l. , cited above, § 40; see also Société Stenuit v. France, report of the European Commission of Human Rights, 30 May 1991, § 62, Series A no. 232 ‑ A). In addition, the Court considers that the fines imposed were essentially intended to punish, in order to prevent repeat offending. They had therefore been based on rules whose purpose was both deterrent, namely to dissuade the applicants from resuming the activity in question, and punitive, since they punished unlawful conduct (see, mutatis mutandis, Jussila, cited above, § 38). Thus, they were not solely intended, as the Government claimed (see paragraph 91 above), to repair damage of a financial nature. In this respect, it should be noted that the penalties were imposed by the CONSOB on the basis of the gravity of the impugned conduct, and not of the harm caused to investors. 97. As to the nature and severity of the penalty which was “likely to be imposed” on the applicants (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 120, ECHR 2003-X), the Court, like the Government (see paragraph 90 above), notes that the fines in question could not be replaced by a custodial sentence in the event of non ‑ payment (see, a contrario, Anghel v. Romania, no. 28183/03, § 52, 4 October 2007). However, the fine which the CONSOB was entitled to impose could go up to EUR 5,000,000 (see paragraph 20 above), and this ordinary maximum amount could, in certain circumstances, be tripled or fixed at ten times the proceeds or profit obtained through the unlawful conduct (see paragraph 53 above). Imposition of the above-mentioned pecuniary administrative sanctions entails the temporary loss of their honour for the representatives of the companies involved, and, if the latter are listed on the stock exchange, their representatives are temporarily forbidden from administering, managing or supervising listed companies for periods ranging from two months to three years. The CONSOB may also prohibit listed companies, management companies and auditing companies from engaging the services of the offender, for a maximum period of three years, and request professional associations to suspend, on a temporary basis, the individual ’ s right to carry out his or her professional activity (see paragraph 54 above). Lastly, the imposition of financial administrative sanctions entails confiscation of the proceeds or profits of the unlawful conduct and of the assets which made it possible (see paragraph 56 above). 98. It is true that in the present case the maximum penalties were not imposed, the Turin Court of Appeal having reduced some of the fines imposed by the CONSOB (see paragraph 30 above), and no confiscations having been ordered. However, the criminal connotation of proceedings depends on the degree of severity of the penalty to which the person concerned is a priori liable (see Engel and Others, cited above, § 82), and not the severity of the penalty ultimately imposed (see Dubus S.A., cited above, § 37). Furthermore, in the present case the applicants had ultimately received fines ranging from EUR 500,000 to 3,000,000, and Mr Gabetti, Mr Grande Stevens and Mr Marrone had been prohibited from administering, managing or supervising listed companies for periods ranging from two to four months (see paragraphs 25 - 26 and 30 - 31 above). This last penalty was such as to compromise the integrity of the persons concerned (see, mutatis mutandis, Dubus S.A., loc. ult. cit. ), and, given their amount, the fines were of undeniable severity and had significant financial implications for the applicants. 99. In the light of the above, and taking account of the severity of the fines imposed and of those to which the applicants were liable, the Court considers that the penalties in question, though their severity, were criminal in nature (see, mutatis mutandis, Öztürk, cited above, § 54, and, a contrario, Inocêncio v. Portugal ( dec. ), no. 43862/98, ECHR 2001 ‑ I). 100. Moreover, the Court also reiterates that, with regard to certain French administrative authorities which have jurisdiction in economic and financial law and enjoy sentencing powers, it has held that the criminal limb of Article 6 applied, in particular, with regard to the Disciplinary Offences (Budget and Finance) Court ( Guisset v. France, no. 33933/96, § 59, ECHR 2000 ‑ IX), the Financial Markets Board ( Didier v. France ( dec. ), no. 58188/00, 27 August 2002), the Competition Commission ( Lilly France S.A. v. France ( dec. ), no. 53892/00, 3 December 2002), the sanctions committee of the financial market supervisory authorities ( Messier v. France ( dec. ), no. 25041/07, 19 May 2009), and the Banking Commission ( Dubus S.A., cited above, § 38). The same finding was made in respect of the Italian regulatory authority responsible for competition and the market (the AGCM – Autorità Garante della Concorrenza e del Mercato; see Menarini Diagnostics S.r.l. , cited above, § 44). 101. After noting and giving due weight to the various aspects of the case, the Court considers that the fines imposed on the applicants were criminal in nature, with the result that Article 6 § 1 is applicable in this case under its criminal head (see, mutatis mutandis, Menarini Diagnostics S.r.l. , loc. ult. cit. ). ... B. Merits 1. Whether the proceedings before the CONSOB were fair (a) The parties ’ submissions i. The applicants 106. The applicants alleged that the proceedings before the CONSOB had been essentially in written form, that no public hearing had been scheduled and that the rights of the defence were not respected. The Court of Cassation itself had acknowledged that the guarantees of a fair trial and protection of the rights of the defence (Articles 111 and 24 of the Constitution) did not apply to administrative proceedings (see paragraph 38 above). 107. The applicants submitted that CONSOB Resolutions no. 12697 of 2 August 2000 and no. 15086 of 21 June 2005 had de facto eliminated the principle of adversarial proceedings, which was, however, a requirement under Article187 septies of Legislative Decree no. 58 of 1998 ... As in the present case, those resolutions permitted non-communication to the defendant of the Directorate ’ s conclusions, which then formed the basis of the decision taken by the Commission; in addition, the latter did not receive the pleadings submitted by the defendants during the investigation phase. Furthermore, the Commission ruled without hearing the defendants and without a public hearing, a fact which, in the present case, had prevented the applicants from addressing the Commission directly and from defending themselves in relation to the Directorate ’ s findings. Those findings had been important evidence, and familiarity with them would have enabled the applicants to detect inconsistencies in the investigation or to obtain relevant information for their defence. The Commission held only an internal meeting, in the course of which the sole individual questioned had been a civil servant from the IT Office (that is, from the body responsible for the “charge”). The applicants were not invited to the meeting and had not even been able to obtain a copy of its minutes. 108. The applicants also claimed that they had not been informed in good time of the new documents on which the IT Office ’ s supplementary note had been based (see paragraph 23 above) and had not had the time and facilities necessary to defend themselves in relation to it. Those documents were allegedly brought to their attention at a late stage. 109. The applicants considered that the proceedings before the CONSOB did not guarantee a real separation between the investigative and decision-making phases, which, they alleged, was in breach of the principle of equality of arms. The investigation was indeed entirely subject to the power to give instructions enjoyed by the CONSOB ’ s chairman, who had responsibility for a large number of investigative measures, including the wording of the accusation or accusations. 110. They submitted that, in the present case, the investigative activity had been unilateral and based on witness statements made in the absence of the accused or their counsel, who had not had an opportunity to question those witnesses or to be present when the various investigative measures were carried out. The applicants had been able to submit their respective pleadings only in writing. ii. The Government 111. The Government argued that the CONSOB ’ s IT Office had appended to its report all of the documents from the investigation, and thus also the defence pleadings submitted by the applicants. They also emphasised that the applicants had been given a thirty-day period in which to submit any observations on the IT Office ’ s supplementary note of 19 October 2006, and that the applicants had submitted those observations on 24 November 2006 without making any complaint as to the limited time available to them. Furthermore, the applicants had never requested that witnesses be summoned and questioned; in the normal course of events, their presence served no purpose in the proceedings before the CONSOB, these being based on the acquisition of technical information and data. The technical nature of the offences justified the decision to resort to essentially written proceedings. 112. Bearing in mind the “administrative” nature of the proceedings before the CONSOB, the Government argued that their fairness could not be challenged on the sole ground that they had been conducted entirely in writing. As administrative proceedings were not referred to in Article 6 of the Convention, the principles of a fair hearing could only be applied to them mutatis mutandis. The impugned proceedings had indeed been promoted by a concern to ensure respect for the rights of the defence, the adversarial principle and the principle that the accusation should correspond to the act that is punished. The applicants had had access to the investigation file, and the investigation and the decision-making process had been separated – the first stage had been under the jurisdiction of the IT Office and the Administrative Sanctions Directorate, while the second stage had been entrusted to the CONSOB ’ s Commission. 113. In this connection, the Government emphasised that the letter accusing the applicants of a violation of Article 187 ter § 1 of Legislative Decree no. 58 of 1998 had not been signed by the CONSOB ’ s chairman, but by the head of the markets and economic opinions division and by the director-general of institutional activities. 114. Once proceedings in respect of an offence had been opened, the persons concerned could exercise their defence rights by presenting written observations or by asking to be heard, first by the relevant office then by the Administrative Sanctions Directorate. Thus, as in the present case, such persons had an opportunity to submit observations concerning the elements constituting the offence and any other relevant circumstance, prior to examination of their case. The investigation took place in two stages (the first before the IT Office, the other before the Directorate), and the Office ’ s report was transmitted not only to the Directorate, but also to the defendants, who could then submit to the Directorate their defence in relation to its content. The fact that the latter ’ s conclusions had not been transmitted to the accused and that they were not heard in person by the Commission had no effect on the fairness of the proceedings. 115. The Government pointed out that even in judicial proceedings the accused was not entitled to discuss the penalty during the decision-making phase. Moreover, the maximum severity of those penalties was determined by the law, which also indicted the criteria to be respected in order to ensure that they were proportionate to the severity of the offences committed. Lastly, as the combined divisions of the Court of Cassation had acknowledged in judgment no. 20935 of 2009, Article 187 septies of Legislative Decree no. 58 of 1998 (governing the rights of the defence in the context of proceedings before the CONSOB) had been introduced into the Italian legal system specifically to ensure compliance with the requirements of the Convention. (b) The Court ’ s assessment 116. The Court is prepared to accept that, as the Government have emphasised, the proceedings before the CONSOB provided the accused with an opportunity to submit evidence in their defence. The accusation drawn up by the IT Office was indeed communicated to the applicants, who were invited to defend themselves (see paragraphs 20 and 21 above). The applicants were also informed of the IT Office ’ s report and supplementary note, and were given thirty days to submit any observations concerning the latter document (see paragraph 23 above). This deadline does not seem patently insufficient and the applicants did not ask for it to be extended. 117. Nonetheless, as the Government have acknowledged (see paragraph 114 above), the report containing the Directorate ’ s conclusions, which was then to be used as the basis for the Commission ’ s decision, was not communicated to the applicants, who were therefore unable to defend themselves in relation to the document ultimately submitted by the CONSOB ’ s investigative bodies to the body responsible for ruling on the merits of the accusations. Further, the applicants did not have an opportunity to question or have questioned those persons who may have been heard by the IT Office. 118. The Court also notes that the proceedings before the CONSOB were essentially written and that the applicants were unable to take part in the only meeting held by the commission, to which they were not invited. This is not disputed by the Government. In this connection, the Court reiterates that an oral, and public, hearing constitutes a fundamental principle enshrined in Article 6 § 1 (see Jussila, cited above, § 40). 119. However, the obligation to hold a hearing is admittedly not absolute (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A) and there may be proceedings in which an oral hearing may not be required, for example where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties ’ submissions and other written materials (see, for example, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002; Pursiheimo v. Finland ( dec. ), no. 57795/00, 25 November 2003; Jussila, cited above, § 41; and Suhadolc v. Slovenia ( dec. ), no. 57655/08, 17 May 2011, in which the Court held that the lack of a public oral hearing created no appearance of a violation of Article 6 of the Convention, in a case concerning driving in excess of the speed limit and driving under the influence of alcohol, where the evidence against the accused had been obtained using technical devices). 120. While the requirements of a fair hearing are the strictest in the sphere of criminal law, the Court would not exclude that in the criminal sphere the nature of the issues to be dealt with before the tribunal or court may not require an oral hearing. Notwithstanding the consideration that a certain gravity attaches to criminal proceedings, which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction, it is self-evident that there are criminal cases which do not carry any significant degree of stigma. There are clearly “criminal charges” of differing weight (see Jussila, cited above, § 43). 121. It must also be said that the fact that proceedings are of considerable personal significance to the applicant is not decisive for the necessity of a hearing (see Pirinen v. Finland ( dec. ), no. 32447/02, 16 May 2006). Nevertheless, refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden, no. 55853/00, § 29, 8 February 2005, and Jussila, cited above, § 42). 122. As to the present case, the Court considers that a public hearing, open and accessible to the applicants, was necessary. In this connection, the Court notes that the facts were contested, especially with regard to the state of progress in the negotiations with Merrill Lynch International Ltd, and that, quite apart from their financial severity, the penalties which some of the applicants were liable to incur carried, as previously noted (see paragraphs ..., 97 and 98 above), a significant degree of stigma, and were likely to adversely affect the professional honour and reputation of the persons concerned. 123. In the light of the foregoing, the Court considers that the proceedings before the CONSOB did not satisfy all of the requirements of Article 6 of the Convention, particularly with regard to equality of arms between the prosecution and the defence and the holding of a public hearing which would have allowed for an oral confrontation. 2. Whether the CONSOB was an independent and impartial tribunal (a) The parties ’ submissions i. The applicants 124. The applicants alleged that, on account of its structure and the powers enjoyed by its chairman, the CONSOB was not an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention. 125. They emphasised that the investigation phase in their case was carried out by the IT Office and by the Administrative Sanctions Directorate. Yet the CONSOB ’ s chairman was called upon to supervise that phase before chairing the Commission proper, in other words the body responsible for imposing the penalties. There was therefore no clear separation between the investigation and the decision-making stages, and this dual role fulfilled by the chairman could create objectively justified doubts as to his impartiality. The same was true with regard to the other members of the Commission, who had learned of the facts only through the chairman and solely on the basis of the version given by the Directorate, to which the defence pleadings submitted by the accused had not been joined. Lastly, the bodies responsible for the investigation had not been independent in relation to the CONSOB ’ s senior hierarchy. 126. Under CONSOB Resolution no. 15087 of 21 June 2005, the chairman was at the summit of the Commission: he applied penalties, supervised the preliminary investigation and authorised the use of investigative powers. He could order inspections or other investigative measures, and in consequence he could not be considered as a “neutral” and impartial judge. ii. The Government 127. The Government noted that the CONSOB was made up of a chairman and four members, selected from independent persons who had specific skills and appropriate moral qualities. At the relevant time its members were elected for a period of five years and their term of office could be renewed only once. During their term of office, those members were not permitted to exercise any other professional or business activities or to hold any other public office. 128. The CONSOB was independent from any other authority and, in particular, from the executive. It could use its budget autonomously and adopt resolutions concerning the career and conditions of employment of its staff. The decision-making body (the Commission) was separate from the investigative bodies (the Office and the Directorate). 129. Although he was responsible for supervising the various offices and had certain powers of initiative during the investigation (in particular he could authorise inspections and ask that various investigative measures be carried out, such as obtaining data on telephone communications and seizing property), the CONSOB ’ s chairman could never interfere in the investigations concerning a given case, which were carried out by the relevant office and by the Directorate. Nor, conversely, did the department and the Directorate play any role in adoption of the final decision. The CONSOB ’ s chairman was responsible for supervising the general criteria which the offices had to comply with in carrying out investigations. He could not take part in assessing the merits of a case on the basis of the evidence obtained, or influence the results of the investigation. His or her duties were comparable to that of the president of a court. 130. The power to open misconduct proceedings and to bring charges lay exclusively with the head of the relevant division, who acted in complete independence and with full discretion. As to the inspections, these were investigative measures intended to obtain information. They were assessed in turn by the relevant offices. Indeed, in the present case, the chairman of the CONSOB had neither authorised the inspections nor asked that investigative measures be taken. The final decision on a seizure of property – which had not been ordered in the present case – lay with the Commission, and required a favourable opinion from the prosecutor ’ s office, issued at the request of the CONSOB ’ s chairman. In any event, it was an interim measure aimed at guaranteeing the solvency of defendants or depriving them of assets used to commit offences. The decision on seizure of property in no way prejudged the decisions concerning the merits of the accusations or the penalties. Even in the context of judicial proceedings, it was accepted that a procedural decision which did not imply any judgment on a suspect ’ s guilt or innocence (such as, for example, an order to remand a person in custody) did not amount to a ground for subsequent doubts as to the impartiality of the court which had issued it. 131. Lastly, the Government noted that in the present case, there had been no conflict of interests between the CONSOB ’ s staff, the members of the Commission and the applicants. (b) The Court ’ s assessment 132. The Court reiterates its well-established case-law to the effect that, in order to establish whether a tribunal can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 190, ECHR 2003-VI). 133. Having regard to the manner and conditions of appointment of the members of the CONSOB, and in the absence of any indication of a lack of sufficient and adequate safeguards against possible extraneous pressure, Court considers that there is no reason to doubt the CONSOB ’ s independence with regard to any other power or authority, and especially with regard to the executive. In this respect, it endorses the Government ’ s observations regarding the CONSOB ’ s autonomy and the safeguards surrounding the appointment of its members (see paragraphs 127 and 128 above). 134. The Court further reiterates the general principles governing the steps to assess the impartiality of a “tribunal”, which are set out, inter alia, in the following judgments: Padovani v. Italy, 26 February 1993, § 20, Series A no. 257-B; Thomann v. Switzerland, 10 June 1996, § 30, Reports of Judgments and Decisions 1996-III; Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports 1996-III; Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII; Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000 ‑ XII; Morel v. France, no. 34130/96, § 42, ECHR 2000-VI; and Cianetti v. Italy, no. 55634/00, § 37, 22 April 2004. 135. As regards the subjective aspect of the CONSOB ’ s impartiality, the Court notes that nothing in the present case pointed to any prejudice or bias on the part of its members. The mere fact that they took decisions against the applicants cannot in itself cast doubt on their impartiality (see, mutatis mutandis, Previti v. Italy ( dec. ), no. 1845/08, § 53, 12 February 2013). It follows that the Court cannot but presume the personal impartiality of the CONSOB ’ s members, including its chairman. 136. As to the objective impartiality, the Court notes that the CONSOB ’ s regulations provide for a certain separation between the investigative entities and the entity with responsibility for determining whether an offence had been committed and imposing penalties. In particular, the accusation is drawn up by the IT Office, which also carries out the investigations; the results are then summarised in the Directorate ’ s report, which contains conclusions and proposed penalties. The final decision on imposing penalties lies solely with the Commission. 137. It is nevertheless the case that the IT Office, the Directorate and the Commission are merely branches of the same administrative body, acting under the authority and supervision of a single chairman. In the Court ’ s opinion, this amounts to the consecutive exercise of investigative and judicial functions within one body; in criminal matters such a combination of functions is not compatible with the requirements of impartiality set out in Article 6 § 1 of the Convention (see, in particular and mutatis mutandis, Piersack v. Belgium, 1 October 1982, §§ 30-32, Series A no. 53, and De Cubber v. Belgium, 26 October 1984, §§ 24-30, Series A no. 86, in which the Court concluded that the “tribunal” had lacked objective impartiality, in the first case on the ground that an assize court had been presided over by a judge who had previously acted as head of the section of the Brussels public prosecutor ’ s department which had been responsible for dealing with the accused ’ s case; and, in the second, on account of the successive exercise of the functions of investigating judge and trial judge by one and the same person in one and the same case). 3. Whether the applicants had had access to a court with full jurisdiction 138. The above findings concerning the CONSOB ’ s lack of objective impartiality and the fact that the proceedings before it did not comply with the principles of a fair hearing are not, however, sufficient to warrant the conclusion that there has been a violation of Article 6 in this case. In this connection, the Court observes that the penalties complained of by the applicants were not imposed by a court at the close of adversarial judicial proceedings, but by an administrative authority, namely the CONSOB. While entrusting the prosecution and punishment of similar minor offences to such authorities is not inconsistent with the Convention, the person concerned must have an opportunity to challenge any decision made against him or her before a tribunal which offers the guarantees of Article 6 (see Kadubec v. Slovakia, 2 September 1998, § 57, Reports 1998-VI; Čanády v. Slovakia, no. 53371/99, § 31, 16 November 2004; and Menarini Diagnostics S.r.l. , cited above, § 58 ). 139. Therefore, in administrative proceedings, the obligation to comply with Article 6 of the Convention does not preclude a “penalty” being imposed by an administrative authority in the first instance. For this to be possible, however, decisions taken by administrative authorities which do not themselves satisfy the requirements of Article 6 § 1 of the Convention must be subject to subsequent control by a judicial body that has full jurisdiction (see Schmautzer, Umlauft, Gradinger, Pramstaller, Palaoro and Pfarrmeier v. Austria, judgments of 23 October 1995, §§ 34, 37, 42 and 39, 41 and 38 respectively, Series A nos. 328 A-C and 329 A ‑ C). The characteristics of a judicial body with full jurisdiction include the power to quash in all respects, on questions of fact and law, the decision of the body below. It must have jurisdiction to examine all questions of fact and law relevant to the dispute before it (see Chevrol v. France, no. 49636/99, § 77, ECHR 2003-III; Silvester ’ s Horeca Service v. Belgium, no. 47650/99, § 27, 4 March 2004; and Menarini Diagnostics S.r.l. , cited above, § 59 ). 140. In the present case, the applicants had the possibility, which they used, of challenging the penalties imposed by the CONSOB before the Turin Court of Appeal and then to appeal on points of law against the judgments delivered by the latter court. It remains to be established whether those two courts were “judicial bodies with full jurisdiction” within the meaning of the Court ’ s case-law. (a) The parties ’ submissions i. The applicants 141. According to the applicants, the subsequent proceedings before the Turin Court of Appeal and the Court of Cassation had not remedied the shortcomings in the proceedings before the CONSOB. Although the court of appeal could be considered a judicial body with full jurisdiction, the fact remained that its hearings had not been held in public. Yet a derogation from the principle that hearings should be held in public could be considered justifiable only in exceptional circumstances (they referred, in particular, to Vernes v. France, no. 30183/06, § 30, 20 January 2011). 142. The applicants contended, in particular, that the proceedings before the court of appeal had not been ordinary proceedings, but special proceedings in which the hearing had taken place in private. In support of their claims, they submitted declarations signed by the administrative director of the Registry of the First Civil Division of the Turin Court of Appeal, stating that the hearings in their case had been held in private. During those hearings, only the counsel for the accused had been present; the applicants had not been summoned, and the court of appeal had questioned neither the accused nor any witnesses. It had carried out no investigations, and had merely endorsed the evidence gathered by the CONSOB. Admittedly, the Government had submitted statements from the President of the First Section of the Court of Appeal, claiming that the hearings in question had in reality indeed been held in public (see paragraph 145 below). It was nonetheless the case that those statements could not contradict the content of public documents, such as the judgments delivered by the court of appeal, which indicated that the parties had been summoned to a private hearing and which attested the facts which they recorded until forgery was proved. Yet the Government had not brought proceedings for forgery and, in any event, the President of the First Section of the Court of Appeal had merely passed on the content of statements made by others, without recounting any event of which he had had direct knowledge. 143. It was true that a public hearing had been held before the Court of Cassation. However, the latter was not a body with full jurisdiction, since it did not deal with the merits of the case and was not called upon to express an opinion on the merits of the accusation or the relevance and cogency of the evidence. It had therefore dismissed all of the arguments submitted by the applicants in order to challenge the manner in which the CONSOB or the court of appeal had assessed the evidence. ii. The Government 144. The Government noted that the applicants had had access to oral and public proceedings before the Turin Court of Appeal, which had re-examined on the merits all of the evidence and information gathered by the CONSOB with regard to the particular circumstances of the impugned conduct, thus enabling it to assess the proportionality of the penalties. The court of appeal enjoyed very wide powers with regard to the taking of evidence, even of its own motion, and could have set aside or amended the CONSOB ’ s decision. The applicants could have requested that witnesses be questioned, or could have asked to be heard in person; yet they had submitted no requests to that effect. At the close of the judicial proceedings, the court of appeal had altered the CONSOB ’ s assessment, and had reduced the penalties imposed on three of the five applicants. 145. The Government submitted that the applicants ’ claim that their case had not been examined in a public hearing before the Turin Court of Appeal was false. Pursuant to section 23 of Law no. 689 of 1981, all of the hearings held before that court were open to the public. As to the statements signed by the Administrative Director of the Registry of the First Section of the Court of Appeal and submitted by the applicants (see paragraph 142 above), the Government argued that they did not reflect the reality of the situation. In counter-argument, they produced five statements signed by the President of the First Section of the Turin Court of Appeal and by the Administrative Director of the same Section, stating that, in the five sets of proceedings concerning the applicants and challenging the penalties imposed by the CONSOB, only the hearings concerning the urgent measures ( sub procedimento cautelare ) had been held in private, all of the other hearings having been public. In those statements, dated 6 September 2013, the President of the First Section of the Court of Appeal indicated that, at the relevant time, he had not been assigned to that body (he had taken up his duties on 1 March 2013), but that he had been able to reconstitute the sequence of events by examining the registers and case files, and on the basis of information provided directly by the staff of the registry and by the judges who had dealt with the cases in question. In particular, the applicants ’ cases had been added to the list of non-contentious cases ( registro volontaria giurisdizione ). Further, Law no. 62 of 18 April 2005 stated that proceedings in respect of Article 187 of Legislative Decree no. 58 of 1998 were to be held in accordance with the conditions laid down in section 23 of Law no. 689 of 1981 (which did not provide for the holding of a hearing in private). Although the applicants ’ cases had remained on the list of non-contentious cases, the procedure followed had been that required by Law no. 62 of 2005. 146. On the basis of those statements, the Government claimed that on 6 March 2007 the applicants had requested that execution of the CONSOB ’ s decision be stayed (Article 187 septies § 5 of Legislative Decree no. 58 of 1998). In the context of these sub-proceedings for the application of urgent measures, a hearing had been held on 28 March 2007; it had been held in private, as provided for by Articles 283 and 351 of the Code of Civil Procedure. A hearing on the merits had subsequently been held on 11 July 2007; in accordance with section 23 of Law no. 689 of 1981, that hearing was held in public. Furthermore, two of the judgments issued by the court of appeal (specifically those against Mr Marrone and the company Giovanni Agnelli S.a.s .) referred to “the public hearing” set for 11 July 2007. The following hearings on the merits of the cases (namely those of 7 November and 5 December 2007) were also public. 147. The Government also emphasised that the applicants had had the opportunity to appeal on points of law, and that the case was then referred to the combined divisions. Before those divisions, there was an oral and public procedure, which fully complied with the rights of the defence, and which concerned both the interpretation and application of the substantive and procedural law ( errores in iudicando and in procedendo ) and the coherence and adequacy of the reasons put forward by the court of appeal. The Government referred, in particular, to the case of Menarini Diagnostics S.r.l. (judgment cited above), in which the Court concluded that there had been no violation of Article 6 § 1 of the Convention, noting that the review of the contested administrative penalty by the administrative court and the Consiglio di Stato had indeed been conducted by courts with full jurisdiction to examine all aspects of the case. In the Government ’ s opinion, there was all the more reason to reach the same conclusion in the present case, where the powers of the court of appeal had been wider than those of the administrative court and the Consiglio di Stato. (b) The Court ’ s assessment 148. The Court notes at the outset that there is nothing in the present case to cast doubt on the independence and impartiality of the Turin Court of Appeal. Indeed, the applicants do not contest it. 149. The Court further observes that the court of appeal had jurisdiction to rule, in respect of both law and fact, on whether the offence set out in Article 187 ter of Legislative Decree no. 58 of 1998 had been committed, and was authorised to set aside the decision taken by the CONSOB. It was also called upon to assess the proportionality of the imposed penalties to the seriousness of the alleged conduct. In fact, it reduced the amount of the fines and the length of the ban on exercising their profession imposed on certain of the applicants (see paragraphs 30 and 31 above) and examined their various factual or legal allegations (see paragraphs 32 ‑ 36 above). Thus, its jurisdiction was not merely confined to reviewing lawfulness. 150. It is true that the applicants complained about the fact that the court of appeal did not question witnesses (see paragraph 142 above). However, they did not indicate any procedural rule which would have prevented such questioning. In addition, the request for questioning of witnesses, made by Mr Grande Stevens in his pleadings of 25 September 2007, did not indicate either the names of the persons whom he wished to have summoned, or the events about which they were to provide evidence. In addition, that request was made on a purely hypothetical basis, for examination only if the court of appeal held that the documents already included in the case file were insufficient or unusable. This also holds in respect of the request made by Mr Marrone, who raised the possibility of questioning the witnesses from whose statements he quoted only “if necessary” (see paragraph 29 above). In any event, before the Court the applicants have not identified the witnesses whom the court of appeal allegedly refused to question and the reasons why their evidence would have been decisive for the outcome of the case. They have not therefore substantiated their complaint under Article 6 § 3 (d) of the Convention. 151. In the light of the above considerations, the Court considers that the Turin Court of Appeal was indeed a “body with full jurisdiction” within the meaning of its case-law (see, mutatis mutandis, Menarini Diagnostics S.r.l. , cited above, §§ 60-67). The applicants themselves do not seem to contest this (see paragraph 141 above). 152. It remains to be established whether the hearings on the merits held before the Turin Court of Appeal were public, a factual matter on which the parties ’ submissions differ (see paragraphs 142 and 145 - 146 above). In this connection, the Court cannot but reiterate its conclusions concerning the necessity, in the present case, of a public hearing (see paragraph 122 above). 153. The Court notes that the parties submitted contradictory documents with regard to the manner in which the disputed hearings were conducted; according to the written statements from the Administrative Director of the Registry of the Turin Court of Appeal, submitted by the applicants, those hearings were held in private, although – according to the written statements of the President of the Court of Appeal, submitted by the Government – only the hearings which concerned the urgent measures were held in private, all of the other hearings having been public. The Court is hardly in a position to state which of these two versions is correct. Whatever the case, faced with these two versions, both of which are plausible and which come from competent but opposing sources, the Court considers that it should not depart from the content of the official documents in the proceedings. As the applicants have righty emphasised (see paragraph 142 above), the judgments delivered by the court of appeal indicate that it met in private or that the parties had been summoned to deliberations held in private (see paragraph 30 in fine above). 154. On the basis of these references, the Court accordingly concludes that no public hearing was held before the Turin Court of Appeal. 155. It is true that a public hearing was held before the Court of Cassation. However, the latter did not have jurisdiction to examine the merits of the case, to establish the facts and to assess the evidence; indeed, the Government do no contest this. It could not therefore be considered as a court with full jurisdiction within the meaning of the Court ’ s case-law. 4. The applicants ’ other allegations 156. The applicants also claimed that the press releases of 24 August 2005 contained truthful information and that their conviction in spite of the defence evidence included in the file resulted from a “presumption of guilt” against them. In their opinion, they had been under no obligation in those press releases to describe mere plans or hypothetical agreements which had not yet been finalised. Moreover, the CONSOB ’ s published instructions specified that information for possible dissemination to the public ought to be tied to real circumstances or a specific event, and not to mere hypotheses as to future and possible actions, which were not of interest for the markets. Yet, at the date on which the press releases were disseminated, no tangible initiative had been undertaken by the applicant companies in relation to expiry of the convertible loan. At the relevant time the envisaged scenario was uncertain, since it was still subject to approval by Merrill Lynch International Ltd and the possibility that there would be no obligation to launch a takeover bid. A CONSOB official had participated in drawing up one of the press releases, and the text in question had received the CONSOB ’ s prior agreement. 157. Despite that, the applicants considered that the CONSOB had drawn up its accusations on the basis of the arbitrary presumption that the agreement amending the equity swap contract had been concluded prior to 24August 2005, in spite of the absence of any written or oral evidence to corroborate that presumption. According to the applicants, they had been convicted without any evidence to that effect. 158. The Court reiterates that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V), and that, as a rule, it is for the national courts to assess the evidence before them (see Pacifico v. Italy ( dec. ), no. 17995/08, § 62, 20 November 2012). Yet the Court has examined the decisions of the national courts that are contested by the applicants without discerning any signs of arbitrariness that would reveal a denial of justice or a manifest abuse (see, a contrario, De Moor v. Belgium, 23 June 1994, § 55 in fine, Series A no. 292 ‑ A, and Barać and Others v. Montenegro, no. 47974/06, § 32, 13 December 2011). 159. The Court also reiterates that the principle of the presumption of innocence requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. It also follows that it is for the prosecution to inform the accused of the case that will be made against him, so that he may prepare and present his defence accordingly, and to adduce evidence sufficient to convict him (see, inter alia, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 77, Series A no. 146; John Murray v. the United Kingdom, 8 February 1996, § 54, Reports 1996 ‑ I; and Telfner v. Austria, no. 33501/96, § 15, 20 March 2001). 160. In the present case, the judgment convicting the applicants was delivered on the basis of inferences held to be strong, clear and concordant, submitted by the IT Office, and which indicated that at the time of issuing the press releases of 24 August 2005, the agreement amending the equity swap had been concluded or was about to be concluded. In these circumstances, no appearance of a violation of the principle of the presumption of innocence can be found (see, mutatis mutandis, Previti v. Italy ( dec. ), no. 45291/06, § 250, 8 December 2009). 6. Conclusion 161. In the light of the above considerations, the Court considers that, although the proceedings before the CONSOB did not met the requirements of fairness and objective impartiality set out in Article 6 of the Convention, the applicants ’ case was subsequently reviewed by an independent and impartial body with full powers, specifically the Turin Court of Appeal. However, the latter did not hold a public hearing, which, in the present case, amounted to a violation of Article 6 § 1 of the Convention. ... V. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 202. The applicants submitted that there had been a violation of the ne bis in idem principle, as guaranteed by Article 4 of Protocol No. 7. That provision reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” 203. The Government contested that argument. A. Admissibility 1. Reservation by Italy in respect of Article 4 of Protocol No. 7 204. The Government noted that Italy had made a declaration to the effect that Articles 2 to 4 of Protocol No. 7 applied only to offences, procedures and decisions classified as criminal under Italian law. Yet Italian law did not classify the offences penalised by the CONSOB as criminal in nature. Furthermore, Italy ’ s declaration was similar to those made by other States (in particular, Germany, France and Portugal). 205. The applicants responded that Article 4 of Protocol No. 7, to which no derogation is permitted under Article 15 of the Convention, concerned a right falling within European public order. In their opinion, the declaration made by Italy when depositing the instrument of ratification of Protocol No. 7 did not have the scope of a reservation within the meaning of Article 57 of the Convention, which did not permit reservations of a general character. In addition, the declaration in question was not attached to “a law” in force at the time it was prepared and did not contain “a brief statement” of that law. The declaration did therefore have any impact on Italy ’ s obligations. 206. The Court observes that the Government have alleged that a reservation has been made regarding the application of Articles 2 to 4 of Protocol No. 7 (see paragraph 204 above). Apart from the applicability of the reservation, the Court has to examine its validity. In other words, it must determine whether the reservation satisfies the requirements of Article 57 of the Convention (see Eisenstecken v. Austria, no. 29477/95, § 28, ECHR 2000-X). That provision reads as follows: “1. Any State may, when signing [the] Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this article. 2. Any reservation made under this article shall contain a brief statement of the law concerned.” 207. The Court reiterates that, in order to be valid, a reservation must satisfy the following conditions: (1) it must be made at the time the Convention is signed or ratified; (2) it must relate to specific laws in force at the time of ratification; (3) it must not be a reservation of a general character; (4) it must contain a brief statement of the law concerned (see Põder and Others v. Estonia ( dec. ), no. 67723/01, ECHR 2005 ‑ VIII, and Liepājnieks v. Latvia ( dec. ), no. 37586/06, § 45, 2 November 2010). 208. The Court has had occasion to specific that Article 57 § 1 of the Convention requires “precision and clarity” from the Contracting States, and that in requiring that a reservation is to contain a brief statement of the law concerned, this provision is not a “purely formal requirement” but sets out “a condition of substance which constitutes an evidential factor and contributes to legal certainty” (see Belilos v. Switzerland, 29 April 1988, §§ 55 and 59, Series A no. 132; Weber v. Switzerland, 22 May 1990, § 38, Series A no. 177; and Eisenstecken, cited above, § 24). 209. By “reservation of a general character” in Article 57 is meant, in particular, a reservation couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope. The wording of the declaration must enable the scope of the Contracting State ’ s undertaking to be ascertained, in particular as to which categories of dispute are included, and must not lend itself to different interpretations (see Belilos, cited above, § 55). 210. In the present case, the Court notes that the reservation in question does not contain a “brief statement” of the law or laws which were allegedly incompatible with Article 4 of Protocol No. 7. It can be inferred from the wording of the reservation that Italy intended to exclude from the scope of that provision all offences and proceedings which were not classified as “criminal” under Italian law. However, a reservation which does not refer to or mention those specific provision of the Italian legal order which exclude offences or proceedings from the scope of Article 4 of Protocol No. 7 does not afford to a sufficient degree a guarantee that [it] does not go beyond the provision expressly excluded by the Contracting State (see, mutatis mutandis, Chorherr v. Austria, 25 August 1993, § 20, Series A no. 266 ‑ B; Gradinger v. Austria, 23 October 1995, § 51, Series A no. 328 ‑ C; and Eisenstecken, cited above, § 29; see also, in contrast, Kozlova and Smirnova v. Latvia ( dec. ), no. 57381/00, ECHR 2001 ‑ XI ). In this respect, the Court reiterates that even significant practical difficulties in indicating and describing all of the provisions concerned by the reservation cannot justify a failure to comply with the conditions set out in Article 57 of the Convention (see Liepājnieks, decision cited above, § 54 ). 211. Consequently, the reservation relied on by Italy does not meet the requirements of Article 57 § 2 of the Convention. This conclusion is a sufficient basis for finding the reservation invalid, without it being necessary to examine further whether there has been compliance with the other requirements of Article 57 (see, mutatis mutandis, Eisenstecken, cited above, § 30). ... B. Merits 1. The parties ’ submissions (a) The applicants 213. The applicants pointed out that they had been subjected to a criminal penalty following the proceedings before the CONSOB, and that they had been subjected to criminal proceedings for the same facts. 214. As to the issue of whether the proceedings before the CONSOB and the criminal proceedings concerned the same “offence”, the applicants pointed to the principles laid down by the Grand Chamber in the case of Sergey Zolotukhin v. Russia ([GC], no. 14939/03, 10 February 2009), in which the Court concluded that it is prohibited to prosecute a person for a second “offence” in so far as it arose from identical facts or facts which were substantially the same. In their opinion, this had clearly been the case in their respect. In this connection, the applicants stated that although the ECJ had admittedly specified that Article 50 of the Charter of Fundamental Rights did not preclude a Member State from imposing successively, for the same acts of non-compliance with declaration obligations in the field of value ‑ added tax, a tax penalty and a criminal penalty, this was on condition that the first penalty was not criminal in nature (see Åklagaren v. Hans Åkerberg Fransson, judgment cited above, point 1 of the operative provisions); in their opinion, however, this condition was absent in the present case, since, whatever their formal classification in Italian law, the penalties imposed by the CONSOB were indeed criminal in nature within the meaning of the Court ’ s case-law. (b) The Government 215. Referring to the arguments developed under Article 6 of the Convention, the Government submitted, firstly, that the proceedings before the CONSOB did not concern a “criminal charge” and that the CONSOB ’ s decision had not been “criminal” in nature. 216. Moreover, European Union law had explicitly authorised the use of a double penalty (administrative and criminal) in the context of the fight against illegal conduct on the financial markets. Such use was part of the constitutional traditions common to the Member States, particularly in areas such as taxation, environmental policies and public safety. In the light of this, and of the fact that some States had not ratified Protocol No. 7 or had made declarations in respect of it, it was possible to affirm that the Convention did not guarantee the principle of ne bis in idem in the same manner as was the case for other fundamental principles. Accordingly, it was not correct to consider that the imposition of a final administrative penalty prevented the bringing of a criminal prosecution. In this connection, the Government referred to the opinion expressed before the ECJ by the Advocate General in his conclusions of 12 June 2012 in the above-cited case of Åklagaren v. Hans Åkerberg Fransson. 217. In any event, the pending criminal proceedings against the applicants did not concern the same offence as that which had been punished by the CONSOB. There was a clear distinction between the offences set out in Articles 187 ter and 185 respectively of Legislative Decree no. 58 of 1998, since only the second required the existence of malicious intent (mere negligence not being sufficient) and of the possibility that the false or misleading information disseminated could trigger a significant shift in the financial markets. Moreover, only the criminal procedure could result in the imposition of punishments involving a custodial sentence. The Government referred to the case of R.T. v. Switzerland (( dec. ), no. 31982/96, 30 May 2000), in which the Court stated that the imposition of penalties by two different bodies (one administrative, the other criminal) had not been incompatible with Article 4 of Protocol No. 7. In this regard, the fact that one and the same conduct could breach both Article 187 ter and Article 185 of Legislative Decree no. 58 of 1998 was not relevant, since the case concerned a typical example of a single act constituting various offences, the characteristic feature of this notion being that a single criminal act was split up into two separate offences (they referred to Oliveira v. Switzerland, no. 25711/94, § 26, 30 July 1998; Goktan v. France, no. 33402/96, § 50, 2 July 2002; Gauthier v. France ( dec. ), no. 61178/00, 24 June 2003; and Ongun v. Turkey ( dec. ), no. 15737/02, 10 October 2006). 218. Lastly, it was to be noted that, in order to ensure the proportionality of the penalty to the accusations, the criminal court was able to take into account the prior imposition of an administrative penalty and to reduce the criminal penalty. In particular, the amount of the administrative fine was deducted from the criminal financial penalty (Article 187 terdecies of Legislative Decree no. 58 of 1998) and assets already seized in the context of the administrative proceedings could not be confiscated. 2. The Court ’ s assessment 219. The Court reiterates that in the case of Sergey Zolotukhin (cited above, § 82), the Grand Chamber specified that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from facts which are substantially the same. 220. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first “penal procedure” was concluded and the list of accusations levelled against the applicant in the new proceedings. Normally these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. In the Court ’ s view, such statements of fact are an appropriate starting point for its determination of the issue whether the facts in both proceedings were identical or substantially the same. It is irrelevant which parts of the new accusations are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal (see Sergey Zolotukhin, cited above, § 83 ). 221. The Court ’ s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (see Sergey Zolotukhin, cited above, § 84). 222. Applying those principles to the case at hand, the Court notes, firstly, that it has just concluded, under Article 6 of the Convention, that there existed valid grounds for considering that the procedure before the CONSOB involved a “criminal charge” against the applicants (see paragraph 101 above) and also observes that the sentences imposed by the CONSOB and partly reduced by the court of appeal constituted res judicata on 23 June 2009, when the judgments of the Court of Cassation were delivered (see paragraph 38 above). From that date, the applicants ought therefore to be considered as having been “already finally convicted of an offence” for the purposes of Article 4 of Protocol No. 7. 223. Despite this, the new set of criminal proceedings which had been brought against them in the meantime (see paragraphs 39 - 40 above) were not closed and resulted in judgments being delivered at first and second instance. 224. It remains to be ascertained whether those new proceedings were based on facts which were substantially the same as those which had been the subject of the final conviction. In this regard, the Court notes that, contrary to what the Government seem to be asserting (see paragraph 217 above), it follows from the principles set out in the case of Sergey Zolotukhin, cited above, that the question to be answered is not whether or not the elements of the offences set out in Articles 187 ter and 185 § 1 of Legislative Decree No. 58 of 1998 are identical, but whether the offences with which the applicants were charged before the CONSOB and before the criminal courts concerned the same conduct. 225. Before the CONSOB, the applicants were essentially accused of having failed to mention in the press releases of 24 August 2005 the plan to renegotiate the equity swap contract with Merrill Lynch International Ltd, although that plan already existed and was at an advanced stage of preparation (see paragraphs 20 and 21 above). They were subsequently punished for this by the CONSOB and by the Turin Court of Appeal (see paragraphs 27 and 35 above). 226. Before the criminal courts, the applicants were accused of having stated, in those same press releases, that Exor had neither instituted nor examined initiatives concerning the expiry of the financing agreement, although the agreement amending the equity swap had already been examined and concluded, information that was kept secret in order to avoid a probable fall in the FIAT share price (see paragraph 40 above). 227. In the Court ’ s opinion, these proceedings clearly concerned the same conduct by the same persons on the same date. Moreover, the Turin Court of Appeal itself, in its judgments of 23 January 2008, admitted that Articles 187 ter and 185 § 1 of Legislative Decree No. 58 of 1998 concerned the same conduct, namely the dissemination of false information (see paragraph 34 above). It follows that the new set of proceedings concerned a second “offence” originating in identical acts to those which had been the subject-matter of the first, and final, conviction. 228. This finding is sufficient to conclude that there has been a breach of Article 4 of Protocol No. 7. 229. Moreover, in so far as the Government submit that European Union law has explicitly authorised the use of a double penalty (administrative and criminal) in the context of combatting unlawful conduct on the financial markets (see paragraph 216 above), the Court, while specifying that its task is not to interpret the case-law of the ECJ, notes that in its judgment of 23 December 2009 in the case of Spector Photo Group, the ECJ indicated that Article 14 of Directive no. 2003/6 does not oblige the Member States to provide for criminal sanctions against authors of insider dealing, but merely states that those States are required to ensure that administrative sanctions are imposed against the persons responsible where there has been a failure to comply with the provisions adopted in implementation of that directive. It also drew the States ’ attention to the fact that such administrative sanctions may, for the purposes of the application of the Convention, be qualified as criminal sanctions (see paragraph 61 above). Further, in its Åklagaren v. Hans Åkerberg Fransson judgment, on the subject of value-added tax, the ECJ stated that, under the ne bis in idem principle, a State can only impose a double penalty (fiscal and criminal) in respect of the same facts if the first penalty is not criminal in nature (see paragraph 92 above). VI. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION 230. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 231. The relevant parts of Article 46 of the Convention read as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution ... A. Indication of general and individual measures 1. General principles 232. Any judgment in which the Court finds a breach imposes on the respondent State a legal obligation under Article 46 of the Convention to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order (see Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004 ‑ I; Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004 ‑ II; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 487, ECHR 2004 ‑ VII). 233. The Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment (see, inter alia, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 ‑ B). 234. However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a systemic situation it has found to exist. In such circumstances, it may propose various options and leave the choice of measure and its implementation to the discretion of the State concerned (see, for example, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). In certain cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate a specific measure (see, for example, Assanidze, cited above, §§ 202 and 203; Alexanian v. Russia, no. 46468/06, § 240, 22 December 2008; Fatullayev v. Azerbaijan, no. 40984/07, §§ 176 and 177, 22 April 2010; and Oleksandr Volkov v. Ukraine, no. 21722/11, § 208, 9 January 2013 ). 2. Application of these principles in the present case 235. In the particular circumstances of the present case, the Court does not consider it necessary to indicate general measures that the State ought to adopt for the execution of the present judgment. 236. In contrast, as regards individual measures, the Court considers that in the present case the nature of the violation found is such as to leave no real choice as to the measures required to remedy it. 237. In these conditions, having regard to the particular circumstances of the case and the urgent need to put an end to the violation of Article 4 of Protocol No. 7 (see paragraph 228 above), the Court considers that the respondent State must ensure that the new set of criminal proceedings brought against the applicants in violation of that provision and which, according to the most recent information received, are still pending, are closed as rapidly as possible and without adverse consequences for the applicants (see, mutatis mutandis, Assanidze, cited above, § 203, and Oleksandr Volkov, cited above, § 208). ... | First the Court noted that the reservation made by Italy did not contain “a brief statement of the law concerned”, contrary to the requirements of Article 57 of the Convention. A reservation which did not refer to, or mention, those specific provisions of the domestic legal order which exclude offences or procedures from the scope of Article 4 of Protocol No. 7 did not afford to a sufficient degree the guarantee that they did not go beyond the provision expressly excluded by the contracting State. Consequently, the Court found that the reservation relied upon by Italy did not meet the requirements of Article 57 and was accordingly invalid. As to the merits, the Court concluded, under Article 6 (right to a fair trial) of the Convention, that there were indeed grounds for considering that the procedure before Consob concerned “a criminal charge”. Equally, the sentences imposed by Consob and partly reduced by the court of appeal had become final in June 2009, when the Court of Cassation had delivered its judgments. Accordingly, the applicants ought to have been considered as having already been convicted by a final judgment. In spite of that, the new criminal proceedings which had been brought against them in the meantime were maintained, and resulted in judgments at first and second instance. In addition, proceedings before Consob and the criminal courts concerned the same conduct by the same persons on the same date. It followed that the new proceedings concerning a second “offence” originated in identical events to those which had been the subject-matter of the first and final conviction, which in itself amounted to a violation of Article 4 of Protocol No. 7. It was therefore for Italy to ensure that the new criminal proceedings brought against the applicants in violation of this provision, and which were still pending, according to the most recent information received, against the third and fifth applicants, were closed as rapidly as possible and without adverse consequences for the applicants. Article 4 of Protocol No. 7 in the case of Häkkä, where it considered that the applicant had a real possibility to prevent double jeopardy by first seeking rectification and then appealing against the taxation decisions. |
41 | Applications lodged by the parent whose child had been abducted by the other parent | II. RELEVANT LAW AND PRACTICE A. The Constitution 27. The relevant provisions of the Constitution read as follows: Article 10 § 2 “Provisions relating to the fundamental rights and the freedoms recognised by the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and international treaties and agreements on human rights that have been ratified by Spain.” Article 18 “1. Everyone’s right to honour and to private and family life ... shall be protected. ...” Article 24 “1. Everyone shall have the right to effective protection by the judges and courts in the exercise of his or her rights and legitimate interests; in no circumstances may there be any denial of defence rights. ...” Article 39 § 4 “Children shall enjoy the protection provided for in the international agreements safeguarding their rights.” Article 96 § 1 “Once officially published in Spain, international treaties that have been validly concluded shall be part of the domestic legal order. ...” B. The United Nations Convention on the Rights of the Child of 20 November 1989 28. The relevant provisions of the Convention on the Rights of the Child [ Spain ratified this instrument on 6 December 1990. The United States signed it on 16 February 1995, but have not yet ratified it ] provide as follows: Article 11 “1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad. 2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.” C. The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 29. The relevant provisions of this convention [ Spain ratified this instrument on 16 June 1987 and the United States on 29 April 1988 ] provide as follows: Article 1 “The objects of the present Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Article 2 “Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.” Article 3 “The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 6 “A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. ...” Article 7 “Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures: (a) to discover the whereabouts of a child who has been wrongfully removed or retained; (b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) to exchange, where desirable, information relating to the social background of the child; (e) to provide information of a general character as to the law of their State in connection with the application of the Convention; (f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access; (g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; (i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” Article 8 “Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. ...” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” D. Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors, amending the Civil Code and Code of Civil Procedure (published in the Official Gazette of 17 January 1996) 30. The relevant provisions of this Law provide: Section 3 “Minors shall enjoy the rights afforded them by the Constitution and international treaties ratified by Spain, in particular, the United Nations Convention on the Rights of the Child, and the other rights guaranteed by domestic legislation ... This law, its implementing provisions and other statutory provisions concerning minors shall be construed in accordance with the international treaties ratified by Spain and, in particular, the Convention on the Rights of the Child of 20 November 1989. The public authorities shall guarantee compliance with the rights of minors and shall ensure their decisions comply with this law and the aforementioned international instrument.” 31. Pursuant to final provision 13 of the aforementioned Law on the legal protection of minors, a second paragraph was added to Article 216 of the Civil Code, which provides as follows: Article 216 “The functions of guardianship constitute a duty. They shall be performed for the benefit of the person for whom the guardian has been appointed and subject to the protection of the judicial authorities. The measures and action contemplated by Article 158 of this Code may also be ordered by the court, on its own initiative or on the application of any interested party, in all cases of de facto or de jure guardianship or custody of minors, ... if their interest so requires.” Article 158 of the Civil Code provides as follows: Article 158 “The court shall, on its own initiative, or on an application by the child, a parent or the public prosecutor, order the following measures: ... (2) appropriate action on a transfer of custody to avoid the unsettling the child in a way that is harmful; (3) in general, any other action it considers expedient to remove the child from danger or prevent it coming to harm. All such measures may be ordered in any civil or criminal proceedings ...” E. Provisions of the Civil Code on the legal representation of minor children 32. The provisions read as follows: Article 154 “Responsibility for dependent minors shall be vested in their mother and father. Parental responsibility shall always be exercised in the child’s interest and in accordance with its personality; it shall include the following powers and duties: (1) to provide the child with protection, company, food, an upbringing and proper guidance; (2) to represent the child and administer its property; ... Parents may seek judicial assistance when exercising their parental responsibility. ...” Article 162 “Parents in whom parental responsibility is vested shall represent their dependent minor children in legal matters. ...” F. Domestic practice in criminal proceedings on the abduction of a minor child by one of its parents 33. In general, the Spanish courts have refused to characterise a failure by a person with parental responsibility for a minor to return the child as false imprisonment or kidnapping, offences under Articles 163 to 165 of the Criminal Code carrying between four and ten years’ imprisonment. Under the case-law, a person guilty of such conduct may only be prosecuted for criminal contempt or extortion under Article 556 of the Criminal Code, for which the punishment is six months’ to one year’s imprisonment. 34. Institutional Law no. 9/2002 of 10 December 2002 amended the provisions of the Criminal and Civil Codes dealing with the abduction of minors. 35. As regards the position under the criminal law, the explanatory memorandum to the Law indicated that a clearly worded provision, creating a separate offence from the generic offence of criminal contempt, had become necessary when the person guilty of removing or failing to return the minor was one of the parents and custody of the minor had been lawfully granted to the other parent or to another person or institution in the child’s interest. 36. The Law inserted a new Article 225 bis in the Criminal Code, worded as follows: “1. A parent who, without any justification, abducts his or her minor child shall be liable on conviction to between two and four years’ imprisonment and shall forfeit his or her parental responsibility for between four and ten years. 2. For the purposes of this Article, the following acts shall be deemed to constitute abduction: (i) transferring a minor from his place of residence without the consent of the parent with whom he or she habitually resides or the persons to whom or institutions to which custody of the minor has been granted; (ii) failing to return a minor in material breach of an obligation arising under a judicial or administrative decision. 3. If the minor is removed from Spain or a condition is imposed for its return, the sentence shall be in the upper half of the range set out in paragraph 1. ... 5. The penalties stated in this Article shall also apply to any person from whom the minor is descended or any relative of the parent by blood or marriage up to the second degree who has committed the aforementioned acts.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 37. The first applicant, acting in her own name and as her child’s legal representative, alleged that the Spanish authorities had failed to take effective measures to ensure the prompt execution of the court orders that had been made and to help secure her son’s return. The applicant claimed that they had thus violated Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 38. She complained, in particular, of a lack of diligence on the part of the judicial authorities in dealing with her complaint of child abduction. A. Submissions of the parties 1. The applicants 39. The first applicant submitted that the respondent State had failed to discharge its obligations under both the Convention and other provisions of domestic and international law. In particular, she said that the domestic authorities had infringed Article 3 and final provision 13 of the Institutional Law on the legal protection of minors and Article 216 of the Civil Code, which placed a duty on the public prosecutor to afford abducted minors protection. As regards the provisions of international law, the first applicant referred to Article 11 § 1 of the Convention on the Rights of the Child of 20 November 1989, which imposed a duty on Contracting States to take appropriate measures to combat the illicit non-return of children abroad, and the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980. Neither the public prosecutor nor the domestic courts had applied that provision, even though it was directly applicable in domestic law. In that connection, she pointed out that, in accordance with Articles 10 § 2 and 96 § 1 of the Constitution, international treaties that had been ratified by Spain formed part of the domestic legal order. By failing to take the necessary measures under domestic and international law, the national authorities were in breach of their implied positive obligations under Article 8 of the Convention. 40. The first applicant stressed the judicial authorities’ failure to act. Thus for instance, the Vigo investigating judge had dismissed all her applications on the ground that he could not disturb people who were not directly implicated in the case, as he was under a duty to protect their private lives. As for the public prosecutor, not only had he declined to take any measures on his own initiative, he had also opposed the measures that had been requested. On learning that her child’s kidnapper had taken a flight to the United States, she had asked the investigating judge to issue an international arrest warrant, but he had refused to do so, on the ground that the alleged facts amounted only to the minor offence of criminal contempt. The public prosecutor had opposed that application. Following the investigating judge’s refusal to issue an international arrest warrant, the first applicant had appealed and the investigating judge had sent a report to the Audiencia Provincial in which he had humiliatingly accused her of suffering from “a bout of jealousy” of her former husband’s family. Faced with that obstructive attitude, she had applied for – and obtained – an order requiring the investigating judge to stand down, on the ground that he was “on very friendly terms” with the kidnapper’s family. 41. The first applicant stressed that she had done all she could to persuade the Spanish judicial authorities to take action to secure her son’s return. Unfortunately, all her requests had been turned down by the courts dealing with the case. Neither the investigating judge, nor the Audiencia Provincial, nor the Constitutional Court had acceded to her requests. Her efforts had all been in vain. 42. Referring to the Court’s case-law on the subject, the first applicant submitted that the domestic authorities had, through their conduct, infringed their positive obligations under Article 8 of the Convention, riding roughshod over her right to respect for her family life by failing to take adequate and effective measures to afford her redress. 2. The Government 43. The Government said at the outset that the primary objective in the case had to be the protection of the child’s interest. After explaining the background to the dispute between the child’s parents, the Government said that ultimately, as a result of the action taken by the Spanish judicial authorities, the father had returned to Spain and the child had been reunited with its mother. In that connection, they noted that the first applicant had at that point decided not to take any civil or criminal proceedings against the father. However, after less than three months’ respite, the first applicant had decided to proceed with the charges and had requested the father’s imprisonment. Furthermore, she had gone on to follow the father’s example in failing to comply with the access arrangements which the family court had put in place for the father. That had led to a complaint by the latter of child abduction against the first applicant. While initially it had been the father who had prevented the first applicant from seeing her son for three years, it was now she who had denied him all contact with the child for two years. The Government stressed that the child should not be caught up in the dispute between the parents. 44. The Government noted that the proceedings in the Vigo Criminal Court had not ended. The first applicant was seeking a term of twelve years’ imprisonment for the child’s father and substantial compensation for the damage sustained. It was clear that the only issue in the proceedings before the Court was whether the measures taken by the domestic authorities had been adequate and effective to enable the first applicant to secure her son’s return. Contrary to what she had alleged, the public prosecutor had taken immediate action by requesting the commencement of criminal proceedings in connection with the first applicant’s complaint and had instructed the police to trace the child’s father. It had also been the public prosecutor who had applied for access to be suspended in view of the father’s failure to comply with the court orders. 45. The Government pointed out the neither the Convention on the Rights of the Child, nor the Hague Convention of 1980 imposed a duty to treat the taking of a child by its father as an offence of abduction. More particularly, the Hague Convention was concerned only with the civil, not the criminal, aspects of international child abduction. Indeed, it would not make sense for a convention dealing with the civil aspects of a case to provide for a person’s detention. As to the comments of investigating judge no. 5 on the first applicant’s conduct, the Government pointed out that they had been made in an internal report from a lower court to a higher court, not in a decision in criminal proceedings. Although they accepted that the judge’s remarks might be considered unfortunate, they said that they could under no circumstances constitute a breach of the first applicant’s right to family life. 46. The Government explained that the first applicant’s requests for investigative measures to be taken, such as forensic examination of fingerprints taken from the father’s car, were rejected by the judge in reasoned decisions that had been upheld on appeal. The investigating judge had interviewed the child’s grandparents and paternal uncles and had decided not to issue an international arrest warrant, as it had not been shown that the child’s father was implicated in an offence of extortion. Without evidence of the commission of a serious offence, no international warrant could be issued. The Government stressed that, following the father’s failure to return the child, the judge had taken a series of measures to protect the first applicant’s right to family life. Those many and varied measures had been adequate and effective, as demonstrated by the fact that the child had been returned to the first applicant a year before the present application was communicated to the Government. The measures ordered by the judge were as follows: (a) border checks; (b) a check on purchases made with the father’s credit card, which had led to the discovery on the third day after the child’s removal that a car had been hired in New York and returned in Texas; (c) inquiries into the father’s and child’s movements after their departure from Brussels; (d) tapping the father’s telephones; (e) inquiries regarding the father’s means, which had led to the freezing of his assets. The father had applied to have that order set aside, but the judge had dismissed his application. Ultimately, it was those measures as a whole that had forced the father to return to Spain and hand over the child. Moreover, there had been no requests at that stage for his detention or imprisonment. The first applicant had withdrawn her criminal and civil complaints. B. The Court’s assessment 47. The Court notes, firstly, that it is common ground that the relationship between the first applicant and her son came within the sphere of family life under Article 8 of the Convention. 48. It must accordingly determine whether there has been a breach of the right of the first applicant and her son to respect for their family life. The Court reiterates that, although the essential object of Article 8 is to protect the individual against arbitrary action by public authorities, there are in addition positive obligations inherent in an effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49). 49. As to the State’s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a right for parents to measures that will enable them to be reunited with their children and an obligation on the national authorities to take such measures (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I, and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII). 50. However, the national authorities’ obligation to take measures to facilitate reunion is not absolute. The nature and extent of such measures will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Ignaccolo-Zenide, cited above, § 94). 51. Lastly, the Court reiterates that the Convention must be applied in accordance with the rules of international law, in particular, those concerning the international protection of human rights (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI ). With specific regard to the positive obligations that Article 8 of the Convention imposes on the Contracting States with respect to reuniting parents with their children, they must be interpreted in the light of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (see Ignaccolo-Zenide, cited above, § 95). 52. The decisive issue in the present case, therefore, is whether the national authorities took all the measures that could reasonably be demanded of them to facilitate the execution of the orders of the domestic courts awarding the first applicant custody of and sole parental responsibility for the child (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 22, § 58). 53. As to the position under domestic law, the Court notes that the national courts were called upon to make decisions, primarily of a civil nature. 54. In that regard, the Spanish courts initially granted the first applicant custody and joint parental responsibility. Subsequently, in a decision of 12 February 1999, the Vigo Family Court awarded the first applicant sole parental responsibility, as it took the view that A.U.A.’s repeated failure to comply with court orders regarding access and the child’s removal were very serious and detrimental to the child’s well-being and proper development. In the light of the circumstances of the case, the Court considers that those decisions were consistent with both the first applicant’s and the child’s interests. 55. Thus, it is indisputable that under domestic law the courts before which the matter came took various measures that were in accordance with the legislation in force. 56. The Court notes, however, that the main issue in the present case is the transfer overseas and illicit non-return of the first applicant’s child. The Court must accordingly examine whether, in the light of their international obligations arising in particular under the Hague Convention, the domestic authorities made adequate and effective efforts to secure compliance with the first applicant’s right to the return of her child and the child’s right to be reunited with its mother (see Ignaccolo-Zenide, cited above, § 95). In that connection, the Court notes that, under Article 96 § 1 of the Constitution, international treaties that have been validly ratified form part of the domestic legal order. Spain has been a Contracting Party to the Hague Convention since 16 June 1987. The United States, the country to which the child was taken by his father, have also ratified it. Furthermore, by virtue of Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors, the national authorities are under a duty to guarantee compliance with the rights of minors in accordance with international treaties that have been ratified by Spain. 57. The Court notes that right from 4 February 1997, that is to say just a few days after the first applicant’s son was taken by his father, the investigating judge ordered a nationwide search and the child’s immediate return to the first applicant. Furthermore, according to submissions made by the Government at the hearing, as a result of the initial inquiries, it was very quickly established that father and child were in the United States. Articles 3, 7, 12 and 13 of the Hague Convention contain a series of measures designed to secure the immediate return of children who have been wrongfully removed to or retained in another Contracting State. In that connection, the Court notes that under Article 3 of the Hague Convention, the removal or retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the removal or retention. On that point, it is not disputed that the first applicant’s son was taken to the United States and wrongfully retained there by the father. His situation was without doubt covered by that provision of the Hague Convention. Furthermore, Articles 6 and 7 of the Hague Convention require Central Authorities to cooperate with each other and to promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children. In particular, either directly or through any intermediary, they must take all appropriate measures to discover the whereabouts of a child who has been wrongfully removed or retained and secure the return of the child to the parent with custody. To that end, Article 11 of the Hague Convention requires the judicial or administrative authorities of Contracting States to act expeditiously in proceedings for the return of children. 58. The Court notes that these measures may be taken by the relevant domestic authorities on their own initiative. Furthermore, Article 158 of the Civil Code as amended by Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors gives the courts power to take of their own motion, inter alia, all appropriate measures to remove the child from danger and to prevent it from coming to harm. 59. Once the Spanish judicial authorities had established that the child had been wrongfully removed, the Court considers that the national authorities concerned should have taken appropriate measures as set out in the relevant provisions of the Hague Convention to secure his return to its mother. The authorities did not take any of the measures prescribed in the Hague Convention to facilitate the enforcement of the court orders in favour of the first applicant and her child. 60. In view of these findings, the Court considers that the criminal aspect of the proceedings no longer has a significant bearing on the case. In that regard, it observes that some of the first applicant’s requests for various investigative measures to be taken in respect of her former husband and members of his family were refused in decisions that were reasoned and not arbitrary. That being so, and contrary to what has been alleged by the first applicant, the domestic criminal courts cannot be accused of having been totally inactive. In that connection, the Court notes that on 4 February 1997 the investigating judge ordered a nationwide search for A.U.A. and the child’s immediate return to his mother; he also made an interim order freezing A.U.A.’s assets. 61. This leaves the question of the domestic courts’ refusal to issue an international search and arrest warrant against A.U.A. In that connection, the Court notes that the reason given by the domestic courts for refusing to issue the warrant was that the act A.U.A. was alleged to have committed, namely leaving with the child, could be classified as criminal contempt, an offence carrying a prison sentence of between six months and one year, and could not form the basis for the issue of an international arrest warrant. In reaching that decision, the domestic courts examined various factual and legal elements they considered relevant to the question. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 20, § 46). In the present case, however, the Court considers that the problem relates not only to the domestic courts’ interpretation of the relevant statutory provisions in force – indeed, there was nothing to show that their interpretation was unreasonable – but, above all, to the inadequacy of the legislation concerned. On this point, the Court notes that the Spanish legislature found it necessary to reinforce the provisions designed to combat child abduction, particularly as regards the criminal law. In that connection, it observes that the provisions of the Criminal Code governing this area were amended by Institutional Law no. 9/2002 of 10 December 2002, which increased the penalties that could be imposed when the person guilty of taking or refusing to return the minor was one of the parents and custody of the minor had been lawfully granted to the other parent or another person or institution in the child’s interest (see paragraphs 33-36 above). 62. Having regard to the foregoing, and notwithstanding the respondent State’s margin of appreciation in the matter, the Court concludes that the Spanish authorities failed to make adequate and effective efforts to enforce the first applicant’s right to the return of her child and to the child’s right to be reunited with its mother and thereby breached their right to respect for their family life, as guaranteed by Article 8 of the Convention. 63. There has, accordingly, been a violation of that provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Non-pecuniary damage 65. The first applicant sought 250,000 euros (EUR) in compensation for the non-pecuniary damage due to the anxiety and distress she said she and her son had experienced on account of the failure to enforce her parental rights. 66. The Government argued that that claim was unjustified and that a finding of a violation would suffice to redress the damage. 67. The Court finds that the first applicant has sustained non-pecuniary damage in the light of the circumstances of the case and, ruling on an equitable basis in accordance with Article 41, awards her EUR 20,000 under this head. 2. Pecuniary damage 68. The first applicant claimed the sum of EUR 18,000 for pecuniary damage. She said that she had suffered a loss of revenue as she had taken a year off from her secondary-school teaching post in order to find her son. 69. The Government maintained that the first applicant’s claim was not justified. 70. The Court finds that the causal link between the violation it has found and the alleged pecuniary damage is too remote to justify an award of compensation under this head. B. Costs and expenses 71. The first applicant sought EUR 17,770 for the costs and expenses incurred in the proceedings before the Court. 72. The Government considered that amount excessive and left the issue to the Court’s discretion. 73. Like the Government, the Court finds the sum claimed excessive. Having regard to the circumstances of the case, it considers it reasonable to award the first applicant EUR 14,000. C. Default interest 74. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention, finding that the Spanish authorities had failed to make adequate and effective efforts to enforce the first applicant’s right to the return of her child and the child’s right to join his mother, thereby breaching their right to respect for family life. It observed in particular that it was for the authorities to implement the appropriate measures provided for in the relevant provisions of the Hague Convention of 25 October 1980, to ensure the child’s return to her mother. No measures had however been taken to ensure the enforcement of decisions taken in favour of the applicant and her child. |
1,063 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. Relevant domestic law and practice A. Tax liability 1. General provisions 307. Under Article 57 of the Constitution of Russia, everyone is liable to pay taxes and duties established by law. 308. Article 44 of the Tax Code of 31 July 1998 no. 146-FZ (as in force at the relevant time) states that an obligation to pay a tax or a duty arises, alters or ceases in accordance with that Code and other legislative acts on taxes and fees. 309. Articles 45 and 80 of the Tax Code provide that, as a general rule, taxpayers must comply with their obligation to pay a tax on their own initiative, and define a tax declaration as the written statement by taxpayers on their revenues and expenses, sources of revenue, tax benefits and the calculated sum of the tax, as well as other data related to calculation and payment of the tax. 310. Under Article 45, in the event of non-payment or incomplete payment of the tax in due time, the tax authorities may levy the tax liability directly from the taxpayer’s bank account. 311. Article 11 (2) of the Tax Code defines a branch of an organisation as a geographically separate department, with stable employment posts. 2. Tax inspections 312. Under Articles 82 and 87 of the Tax Code, the tax authorities may carry out documentary and on-site tax inspections of taxpayers. Such inspections may cover only the three calendar years of the taxpayer’s activity directly preceding the year of inspection. In exceptional cases the authorities are allowed to carry out repeated on-site tax inspections. Such cases include, among other things, on-site inspections conducted by way of supervision of the activities of the tax authority that conducted the initial audit (Article 87 (3) of the Code). 313. Article 101 (4) 2 of the Tax Code states that the tax authority may use as evidence during its inspections documents earlier demanded by the authority from a taxpayer, documents submitted or obtained during documentary and on-site tax inspections of that taxpayer as well as other documents in the possession of the authority. 314. Under Article 100 (5) of the Tax Code a taxpayer has two months to file a detailed reply to the report drawn up by the tax authorities on the outcome of the tax inspection. 315. Under Article 81 of the Tax Code, a taxpayer may not be fined in respect of any errors if, prior to commencement of the on-site tax inspection for the relevant year, it files amended tax returns and voluntarily satisfies the related tax liabilities, including default interest. 316. By order no. BG-3-29/159 dated 2 April 2003 the Tax Ministry decided that the period for performance of the demand to pay tax addressed to a taxpayer may not exceed ten calendar days from the date of its receipt by the taxpayer. 317. The Government relied on the following cases as examples of typical terms given to taxpayers for voluntary payment of reassessed taxes and surcharges: (a) Case no. A82-11/2003-A/6 318. On 13 November 2000 the Tax Ministry demanded that respondent OAO Slavneft-YANOS pay reassessed taxes and interest surcharges amounting to over RUB 53 million within one day. The court decisions in the case were taken on 11 June 2003, 7 October 2003 and 19 January 2004. (b) Case no. A33-16983/01-S3a-F02-1826/02-S1 319. On 31 May 2001 the Tax Ministry ordered the Municipal Housing and Utilities Infrastructure of the Kansk District to pay reassessed taxes in the amount of RUB 814,581.54 within one day. The first judgment of 9 April 2002 was upheld by the cassation instance on 16 July 2002. (c) Case no. F04/1724-594/A27-2004 320. On 23 January 2003 the Tax Ministry ordered FGUP PO Progress to pay reassessed taxes in the amount of RUB 72,827,208 within one day. The court decisions were taken on 4 September, 16 December 2003 and 5 April 2004 respectively. (d) Case no. A26-8688/03-26 321. On seven occasions in 2003 the Tax Ministry ordered OOO Krasnaya Rybka to pay reassessed taxes and interest surcharges in the overall amount of RUB 760,043.19 within one day. The first-instance judgment in the case, dated 13 February 2004, was upheld by a cassation decision of 16 June 2004. (f) Case no. F04-2648/2005(10969-A61-37) 322. On 25 August 2004 the Tax Ministry ordered OOO YamalGIS-Servis to pay reassessed taxes in the amount of RUB 268,083 on the same day. The court decisions upholding the demand were taken on 9 December 2004, 24 February and 4 May 2005. B. Applicable taxes 1. General provisions 323. Article 38 of the Tax Code provides that objects of taxation may be operations involving the retailing of goods, works and services, property, profit, income, value of retailed goods, works and services or other objects having cost, quantitative or physical parameters on the existence of which the tax legislation bases the obligation to pay tax. 324. Article 39 of the Code defines retailing of goods, works and services as, inter alia, the transfer (including exchange of services, works and goods) in return for compensation of property rights in respect of goods and results of works from one person to another, as well as the rendering of services from one person to another in exchange for compensation. 325. Article 41 of the Code defines profits as economic gains in monetary form or in kind. 2. Value-added tax (a) Before the entry into force of the Second Part of the Tax Code on 1 January 2001 326. Section 3 of RF Law no. 1992-1 of 6 December 1991 “On Value-Added Tax” (as in force at the relevant time) subjects to VAT, among other things, the turnover generated by the retailing of goods, works and services on the territory of Russia, the rates of which range between 10% and 20%. Under section 5 of the Law, exported goods are exempt from payment of the tax. The exemption becomes effective only if the taxpayer properly justifies the claim. Until these documents are filed, the tax remains payable under the non-export rate. 327. Letter no. B3-8-05/848, 04-03-08 of the State Tax Service of Russia and the Ministry of Finance, dated 21 December 1995, stated that taxpayers were to file the following documents to justify this tax exemption: a contract concluded between the legal personality taxpayer registered in Russia with its foreign partner, proof of payment in respect of the goods, and a customs declaration bearing the appropriate stamp of the customs body, confirming the export of goods from the customs territory of Russia. (b) After the entry into force of the Second Part of the Tax Code on 1 January 2001 328. In respect of VAT, the applicable tax rate is 0% if the traded goods are placed in an “export” customs regime and physically removed from the customs territory of the Russian Federation (Article 164 (1) of the Tax Code). In addition, the taxpayer may claim a refund of the “incoming” VAT already paid in respect of the exported goods. 329. For the zero rate to become effective and in order to claim the VAT refund, it is necessary to justify the claim by filing the following documents with the tax authorities (Article 165 of the Tax Code): the export contract concluded between the taxpayer and the foreign buyer, a bank statement confirming receipt of funds from the foreign buyer by a Russian bank duly registered with the tax authorities, a relevant customs declaration bearing the stamp of the customs bodies confirming the export of the goods from the customs territory of Russia, and copies of relevant transport bills and shipping documents, bearing the stamps of the customs bodies, confirming the export of goods from the customs territory of Russia. 330. On 14 July 2003 the Constitutional Court issued ruling no. 12-P, in which it essentially upheld the constitutionality of Article 165 of the Code. The court distinguished between documents required by public-law norms, such as the taxpayer’s customs declaration bearing the relevant stamps from the customs bodies, and which are mandatory in all cases, and other documents such as contracts, transport bills etc. In view of the different practices of the economic actors, which made the latter type of documents mutually replaceable, the authorities were constitutionally permitted to require a taxpayer to file these documents, but without an excessive degree of formalism. 331. The relevant documents are to be filed with the competent tax authority within 180 days from the date of the customs clearance of the goods in question (Article 165 (9) of the Tax Code). Until these documents are filed, the tax remains payable under the non-export rate. A taxpayer is not precluded from filing the documents in question even after the expiry of the time-limit in question (Article 176 of the Tax Code). 332. By a decision of 28 April 2003 (case no. F09-1159/03-AK) in the case of ZAO Aktsionernaya neftyanaya kompaniya v. the Tax Ministry, the Federal Commercial Court of the Ural District, acting as a cassation review court, rejected the company’s claims for VAT refunds with reference to its failure to satisfy the requirements of Article 165 of the Code. The company could not prove the fact of actual payment for the allegedly exported goods. 333. By a decision of 17 February 2004 (case no. F09-187/04-AK) in the case of OOO Firma Galaktika v. the Tax Ministry, the Federal Commercial Court of the Ural District, acting as a cassation review court, rejected the company’s claims for VAT refunds with reference to its failure to satisfy the requirements of Article 165 of the Code. The company failed to submit a proper bank statement confirming receipt of funds from the foreign buyer. 334. By a decision of 3 May 2005 (case no. A56-31805/04) in the case of ZAO Stroitelnyy trest no. 28 v. the Tax Ministry, the Federal Commercial Court of the North Western District examined the decisions of lower courts whereby the company had been refused VAT refunds at first instance (by a judgment of 11 October 2004 – the company failed to submit the properly stamped customs declaration confirming the actual export of the goods) and had subsequently been granted them on appeal (by a decision of 21 January 2005 – the appeal court decided that the fact of the actual export had been established by a final court decision in a related court dispute). The cassation court quashed the appeal decision, having noted that the requirements set out in Article 165 of the Code were strict and unequivocal and that the law did not allow for any replacement of the customs declaration by other means of proof. 335. By a decision of 9 March 2005 (case no. F09-563/05-AK) in the case of OAO Kachkanarskiy gorno-obogatitelnyy kombinat Vanadiy v. the Tax Ministry, the Federal Commercial Court of the Ural District quashed the decisions of lower courts whereby the company had been granted VAT refunds. The cassation court noted that the requirements set out in Article 165 of the Code were strict and unambiguous and that the law required the taxpayer to prove the actual export solely by means of the properly stamped customs declaration, which had not been done by the company in the present case. Accordingly, the court rejected the company’s claims. 336. By a decision of 27 September 2005 (case no. F09-4252/05-C2) in the case of OAO Nauchno-proizvodstvennyy centr vysokotochnoy tekhniki Izhmash v. the Tax Ministry, the Federal Commercial Court of the Ural District, acting as a cassation review court, rejected the company’s claims for VAT refunds with reference to its failure to satisfy the requirements of Article 165 of the Code in a timely manner, that is, within six months. 3. Motorway fund tax 337. Section 5 (2) of RF Law no. 1759-1 of 18 October 1991 “On motorway funds in the Russian Federation” provides for a 1% motorway users’ tax from the turnover of the retail of goods, works and services, payable by all motorway users. Section 4 also makes subject to a 25% tax the turnover (excluding VAT) of companies trading in fuels and lubricants. 338. This tax was abolished from 1 January 2003. 4. Tax for the maintenance of the housing stock and socio-cultural facilities 339. Section 21 (“Ch”) of RF Law no. 2118-1 of 27 December 1991 “On the foundations of the tax system” imposes a tax of up to 1.5% for the maintenance of the housing stock and socio-economic facilities. 340. This tax was abolished with the entry into force of the Second Part of the Tax Code on 1 January 2001. 5. Corporate property tax (a) Before the entry into force of the Second Part of the Tax Code on 1 January 2001 341. Section 2 (1-2) of RF Law no. 2030-1 of 13 December 1991 “On corporate property tax” provided for a tax of up to 2% in respect of organisations’ property. (b) After the entry into force of the Second Part of the Tax Code on 1 January 2001 342. Chapter 30 of the Tax Code provides for a tax of up to 2.2% in respect of organisations’ property. The exact rate is defined by the regional authorities. 6. Profit tax (a) Before the entry into force of the Second Part of the Tax Code on 1 January 2001 343. Law no. 2116-1 of 27 December 1991 “On profit tax on enterprises and organisations” (sections 2 and 5) provided for a profit tax, the rate of which could vary depending on the type of taxable activity and the rate fixed by the local authorities. The mandatory rate to be transferred to the Federal budget was 11%. (b) After the entry into force of the Second Part of the Tax Code on 1 January 2001 344. Chapter 25 of the Tax Code provides for a profit tax of up to 24% (6.5% to be transferred to the Federal budget and the rest to the regional budget). 7. Advertising tax 345. Section 21 (1) “z” of RF Law no. 2118-1 of 27 December 1991 “On the foundations of the tax system” imposed a tax in respect of the cost of advertisement services. 346. This tax was abolished from 1 January 2005. C. Tax advantages 1. General provisions 347. Article 56 of the Tax Code defines a tax benefit as a full or partial exemption from the payment of taxes, granted by the tax legislation. 348. In letter no. 04/06/08, dated 21 October 1998, the Ministry of Finance noted, inter alia : “...[that] experience in creating and operating free economic zones in the Russian Federation, established pursuant to both federal laws (the special economic zone in the Kaliningrad region) and resolutions of the authorities of constituent entities of the Federation (Kalmykiya, Tuva), [has] demonstrate[d] that the creation of such zones across such vast areas in the absence of a proper analysis of investment projects leads to abuses of the tax and customs incentives granted and, accordingly, to serious losses suffered by the federal and local budgets, as reported by the Ministry of Finance of Russia to the Government of Russia on multiple occasions.” 2. Requirements relating to the registration of taxpayers 349. Under Article 83 (1) of the Tax Code, taxpayers which are legal entities are required to register with the tax authorities at their headquarters (location of their executive bodies), at the location of their branches and at the location of any real estate and places where vehicles belonging to them are registered. 350. Special registration rules applied in respect of large taxpayers, including the applicant company. 351. By Decree no. АП-3-10/399 of the Tax Ministry, dated 15 December 1999, such taxpayers are required to register at their main location, at the location of their branches and at the location of real estate and places where vehicles belonging to them are registered, and in certain specific tax offices (inter-district level or as specifically indicated by the Ministry). 352. Annex 3 to the Decree contains the form “On subsidiary and dependant companies and subsidiary enterprises”, to be filled in by the taxpayer. During registration the taxpayer is required to indicate all of its subsidiary and dependant companies. 353. In respect of domestic off-shore territories, according to commentators, this requirement means that in practice the taxpayer’s executive body should always be physically located and functioning on the territory of the off-shore. If the taxpayer fails to comply with the requirement, the tax authorities could declare its registration void with the subsequent recovery of the entirety of the perceived tax benefits (see A.V. Bryzgalin, Practical Tax Encyclopaedia, Moscow, 2003-2006, Chapter 3 “Methodology of tax optimisation”). 3. Closed administrative-territorial formations (the town of Sarov in the Nizhniy Novgorod Region, the town of Trekhgornyy in the Chelyabinsk Region and the town of Lesnoy in the Sverdlovsk Region) (a) Legal provisions 354. Under section 5 of Law no. 3297-1 of the Russian Federation “On closed administrative-territorial formations”, tax concessions are provided to businesses if, inter alia, they have at least 90% of their fixed assets and conduct at least 70% of their activities on the territory of the respective formation (including a requirement that at least 70% of their employees be made up of persons permanently residing in the ZATO in question, and that at least 70% of their wage bill be paid to employees permanently residing in that territory). 355. Letter no. AП-6-01/505 of the Tax Ministry, dated 24 June 1999, contained Methodological Directions to the tax bodies on issues concerning the lawfulness of the use of additional tax benefits granted by local authorities in the closed administrative-territorial formations. It stated that the tax authorities ought to verify the actual presence of the taxpayer’s assets on the territory in question by checking its accounting records and financial statements, and by confirming the physical location of the organisation at the indicated address and the fact of genuine performance by the taxpayer’s employees at the taxpayer’s registered location. (b) Case no. A42-6604/00-15-818/01 (The Tax Ministry v. OOO Pribrezhnoe), referred to by the applicant company 356. The respondent legal entity was OOO Pribrezhnoe, registered in the closed administrative territorial formation town of Snezhnogorsk, which has a privileged tax regime. The Ministry tried unsuccessfully to contest the use of tax concessions by the respondent, by demonstrating that the entity had not been actually present at the place of its registration. The domestic court found for the respondent. They established that the entity had some assets on the territory of Snezhnogorsk, a number of permanent employees (including a lawyer and the cleaning lady), and a cash account in the local bank, which proved that the entity satisfied the criteria provided for in law. 357. The final decision in the case was taken by the Court of Cassation on 5 June 2002. 4. The Republic of Mordoviya 358. Under Law no. 9-FZ of the Republic of Mordoviya of 9 March 1999 “On the conditions of efficient use of the socio-economic potential of the Republic of Mordoviya”, tax concessions are granted to taxpayers whose entities were established after the entry into force of that law and whose activities meet certain conditions, including but not limited to the following: (a) they conduct export operations, the quarterly proceeds from which account for at least 15%of the business’s total earnings; (b) they engage in wholesale trade in fuel and lubricants and other types of hydrocarbon raw materials, the quarterly proceeds from which account for at least 70% of the business’ total earnings. 359. Section 1 of the Law states that “this Law establishes concessions with the objective of creating favourable conditions for attracting capital into the territory of the Republic of Mordoviya, strengthening the socio-economic potential of the Republic of Mordoviya, developing the securities market and creating new jobs through special arrangements for the taxation of organisations”. 5. The Republic of Kalmykiya 360. Law no. 12-P-3 of the Republic of Kalmykiya of 12 March 1999 “On tax concessions for companies investing in the Republic of Kalmykiya” provides tax concessions to those who meet the following criteria: (a) the taxpayer is not a user of mineral resources in the territory of the Republic; (b) the taxpayer is registered with the Ministry of Investment Policy of the Republic of Kalmykiya as an enterprise investing in the economy of the Republic; (c) the enterprise’s investment in the economy of the Republic meets the criteria established by the Ministry of Investment Policy of the Republic in accordance with this law. 361. By a decision of 16 April 2002 (case no. F08-1134/2002-402) in the case of OOO Simpleks v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy. 362. By a decision dated 29 April 2002 (case no. F08-1368/2002-506A) in the case of OOO Impuls v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and indeed made any investments in the local economy. 363. By a decision of 20 May 2002 (case no. F08-1678/2002-614A) in the case of OOO Sibirskaya transportnaya kompaniya (one of the sham entities belonging to the applicant company) v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District ruled as follows: “[b]ased on the content and meaning of the [above-mentioned] law and Resolution no. 7 of the Elista Town Administration, [the purpose of the municipal legislation] is to attract funds from various investors for development of the regional and local economies, given the lack of funds in the regional and local budgets and the need for their replenishment to ensure the activities of the Kalmyk Republic and the town of Elista ... The case documents show that RUB 27,196 came from the plaintiff for development of the regional and local economies, whereas RUB 6,918,617 did not enter the regional and local budgets directly. Thus, the investments made by [OOO Sibirskaya transkportnaya kompaniya] amount to 0.4% of the amount of taxes that would otherwise have been payable by it. They have no effect on the development of the economy [and] do not cover the budgetary losses related to the granting of incentives to taxpayers; on the contrary, they have consequences in the form of unfair enrichment at the expense of budgetary funds. Thus, given that the amount of the investments made by the plaintiff is incommensurate to the amount of incentives used, the plaintiff abused its right, that is, it acted in bad faith”. Accordingly, the court quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had complied with the above-mentioned conditions and whether it had acted in good faith. 364. By a decision of 28 May 2002 (case no. F08-1793/2002) in the case of ZAO Telekom Zapad Komplekt v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District ruled that: “[b]ased on the meaning and contents of the [above-mentioned] law and Resolution no. 7 of the Elista Town Administration, it follows that [the purpose of the municipal legislation] is to attract funds from various investors for development of the regional and local economies, given the lack of funds in the regional and local budgets and the need for their replenishment to ensure the activities of the Kalmyk Republic and the town of Elista... ... [the court has to examine] the proportion between the investments made by the [taxpayer] and the amount of tax that did not enter the budget [in order] to resolve the issue of the plaintiff’s good faith and its abuse of its rights”. Accordingly, the court quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had complied with the above-mentioned conditions and had acted in good faith. 365. By a decision of 4 June 2002 (case no. F08-1864/2002-697A) in the case of ZAO Promyshlennaya korporaciya Shar v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy. 366. By a decision of 5 August 2002 (case no. F08-2762/2002-1009A) in the case of OOO Promet v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy. 367. By a decision of 13 August 2002 (case no. F08-2892/2002-1051A) in the case of OOO TD Dion v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy. 368. By a decision of 29 August 2002 (case no. F08-3158/2002-1140A) in the case of ZAO Stanford v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy. 369. By a decision of 20 February 2003 (cases nos. F08-270/2003-91A and F08-1679/2002-622A) in a dispute between the Tax Ministry and OOO “Vostochnaya perestrakhovochnaya kompaniya”, the Federal Commercial Court of the North-Caucasian Circuit found as follows: “The investments made by the [taxpayer] amount to 0.14% of the amount of taxes that would otherwise have been payable by it. They have no effect on the development of the economy... but ... their effect is unfair enrichment .... Therefore, [as] the amount of investments by [the taxpayer] was incommensurate to the amount of the benefits received, [the taxpayer] abused its right, that is, it acted in bad faith” 370. By a decision of 20 February 2003 (case no. F08-268/2003-98A) in the case of OOO Bazis Sekyuritis v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy. 371. By a decision of 8 April 2003 (case no. F08-1013/2003-383A) in the case of OOO Gravite v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy. 6. The Evenk Autonomous District 372. Under section 9 of Law no. 108 of the Evenk Autonomous District “On specific features of the tax system in the Evenk Autonomous District” of 24 September 1998, substantially lower tax rates apply to local businesses whose activities meet certain conditions with regard to the special taxation procedure set out in section 8 of that Law. D. The use and interpretation of terms of civil legislation in tax disputes 373. Under Article 11 of the Tax Code, the institutions, notions and terms of the civil legislation of Russia used in the Tax Code keep their respective meanings, unless specifically stated. E. General principles governing the status of legal entities 1. Presumption of independence 374. Under Article 2 of Civil Code of 30 November 1994 no. 51-FZ (as in force at the relevant time), the legal status of parties involved in civil-law transactions, the grounds for the creation of ownership and other property rights and the order of exercising those rights are defined by the civil legislation, which also regulates contractual and other obligations. 375. The civil legislation regulates the relations between persons engaged in business activities or in those activities performed with their participation, on the assumption that business activity is an independent activity performed at one’s own risk and aimed at systematically deriving a profit from the use of property, the sale of commodities, the performance of work or the rendering of services by those persons registered in this capacity in conformity with the legally-established procedure. 376. It is formally prohibited to make any unilateral property transfers (gifts, grants or gratuitous loans) between independent commercial legal entities (Articles 575 and 690 of the Civil Code). Unilateral property transfers are permitted by Article 251 (1) 11 of the Tax Code and not counted for the purposes of profit tax if they are made between associated entities, where one of them holds more than 50% of shares in the equity of the other entity. 2. Rules applicable to subsidiary and dependant companies 377. Article 105 of the Civil Code provides that a subsidiary company is one controlled by another company, either through ownership of the subsidiary company’s shares, by virtue of a contract or by any other means. 378. The controlling company is jointly responsible for debts incurred by the subsidiary company as a result of compliance with the controlling company’s instructions. The controlling company may be held vicariously responsible for a debt of the subsidiary company in the event of the latter’s insolvency. 379. Article 106 of the Code provides that a company is dependant when the other company owns over 20% of the first company’s voting stock. A company which purchases over 20% of the voting shares in other companies is obliged to make this information public. 380. Similar rules are established in respect of limited liability companies ( обществa с ограниченной ответственностью ) by section 6 of Law no. 14-FZ on limited liability companies of 8 February 1998. F. Definition of a property owner 381. Article 209 of the Civil Code defines an owner as the person who has the rights of possession, use and disposal of his property. In respect of this property, the owner is entitled, at his will, to perform any actions not contradicting the law and the other legal acts, and not violating the rights and legally protected interests of other persons. G. Contractual freedom and its limits 1. Presumption of good faith and prohibition on abuse of rights 382. Articles 9 and 10 of the Civil Code provide that the parties involved in civil-law transactions are free to act contractually within the limits defined by law. 383. Article 10 (1 and 2) of the Code states specifically that parties involved in civil-law transactions are prohibited from abusing their rights. In such cases, the courts may deny legal protection in respect of the right which is being abused. Article 10 (3) establishes a refutable presumption of good faith and reasonableness of actions on the parties in civil-law transactions. 2. Examples of the case-law of the domestic courts concerning the notion of bad faith 384. In its decision no. 24-P dated 12 October 1998, the Constitutional Court of Russia for the first time made use and interpreted the notion of “bad/good faith” to assess the legal consequence of the conduct of taxpayers in its jurisprudence. In this case this was done to define the moment at which a taxpayer can be said to have discharged his or her constitutional obligation to pay taxes. 385. In its decision no. 138-O dated 25 July 2001, the Constitutional Court of Russia again confirmed that there existed a refutable presumption that the taxpayer was acting in good faith and that a finding that a taxpayer had acted in bad faith could have unfavourable legal consequences for the taxpayer. The case again concerned the definition of a moment at which a taxpayer can be said to have discharged his or her constitutional obligation to pay taxes. 386. The domestic commercial courts applied this approach in a number of cases concerning the eligibility of taxpayers to tax concessions in the Republic of Kalmykiya, such as decision no. F08-1134/2002-402 of 16 April 2002 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-1864/2002-697A of 4 June 2002 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-2762/2002-1009A of 5 August 2002 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-2892/02-1015A of 12 August 2002 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-3158/2002-1140A of 29 August 2002 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-268/2003-98A of 20 February 2003 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-1013/2003-383A of 8 April 2003 of the Federal Commercial Court of the North Caucasian Circuit. 387. In its decision no. 168-O of 8 April 2004 the Constitutional Court noted that it would be inadmissible for bad-faith taxpayers to manipulate the legal civil-law institutions to create and operate schemes for unlawful enrichment at the expense of the State budget. The case concerned the use of exchange notes in the sphere of VAT refunds. 3. Rules governing sham transactions (a) Statutory law 388. Under Article 153 of the Civil Code, transactions are defined as activities of natural and legal persons creating, altering and terminating their civil rights and obligations. 389. Article 166 of the Civil Code states that a transaction may be declared invalid on the grounds established by that Code, either by force of its being recognized as such by the court (a voidable transaction, оспоримая сделка ), or regardless of such recognition (a void transaction, ничтожная сделка ). 390. Under Article 167 of the Civil Code, void transactions entail no legal consequences, apart from those relating to their invalidity, and are invalid from the moment they are conducted. 391. Article 170 (2) establishes specific rules in respect of two types of void transactions: ‘imaginary’ transactions (“ мнимая сделка ”, effected only for form’s sake, without the intention to create the corresponding legal consequences) and ‘sham’ transactions (“ притворная сделка ”, which are effected for the purpose of screening other transactions). This provision condemns both imaginary and sham transactions as void. 392. It also provides that in the event of sham transactions, the rules governing the transaction that was in fact intended by the parties may be applied by a court, regard being had to the substance of this transaction (the so-called “substance over form” rule). 393. Under Article 45 (2) 3 of the Tax Code the power to re-characterise transactions by a taxpayer with third parties, their legal status and the nature of the taxpayer’s activity in tax disputes lies with the courts (as opposed to executive bodies). Section 7 of Law no. 943-1 of 21 March 1991 “On Tax Authorities in the Russian Federation” vests the power to contest such transactions and recover everything received in such transactions with the State budget. (b) Academic sources 394. Comments on the Civil Code (O.N. Sadikov, Comments on the Civil Code, Yuridicheskaya firma Kontrakt Infra-M, Moscow, 1998) states, with reference to Bulletin no. 11 of the Supreme Court of RSFSR (page 2), that any evidence admitted by the rules on civil procedure may also serve as proof of the invalidity of sham transactions. H. General rules on price formation and the price adjustment mechanism 395. Article 40 (1) of the Tax Code requires that the parties trade at market prices. It also establishes a refutable presumption that the prices agreed to by the parties correspond to market levels and are used for taxation purposes. THE LAW I. COMPLIANCE WITH ARTICLE 35 § 2 (b) OF THE CONVENTION 516. The Court reiterates that it declared this application admissible on 29 January 2009 (see OAO Neftyanaya Kompaniya Yukos v. Russia (dec.), no. 14902/04, 29 January 2009) and decided to hold a hearing on the merits of the case. Subsequently, but prior to the hearing, the Court was informed that arbitration proceedings, allegedly brought against the Russian Federation by the applicant company’s former owners, were pending and considered that these developments raised an issue of the applicant company’s compliance with the requirements of Article 35 § 2 (b) of the Convention. It invited the parties to address this question in their submissions at the hearing. A. The parties’ submissions 517. The Government submitted that in February 2005 the applicant company’s former majority shareholders Hulley Enterprises Ltd, Yukos Universal Ltd and Veteran Petroleum Ltd, which had jointly owned over 60% of shares in the applicant company, brought arbitration proceedings against the Russian Federation for the alleged breaches of the Energy Charter Treaty in the Permanent Court of Arbitration in The Hague. The Government pointed out that the applicant company had ceased to exist and that it was obvious that the above-mentioned majority shareholders had been behind the present case in the Court and that they would be the end-beneficiaries of any eventual award in these proceedings. The Government also mentioned a number of arbitration proceedings brought against the Russian Federation by groups of minority shareholders under bilateral investment treaties. Overall, the Government invited the Court to discontinue the case with reference to Article 35 § 2 (b) of the Convention. 518. The applicant company denied any participation in and any knowledge of any other international proceedings that may be of relevance. At the same time, it invited the Court to rule that the parties in the proceedings before this Court (the applicant company) and in The Hague arbitration proceedings (the applicant company’s controlling shareholders) were not the same. According to the applicant company, the subject-matter in the two cases was different. It also claimed that the arbitration proceedings in the Hague were conducted before ad hoc tribunals, constituted by the parties, and were not comparable to the Court in their structure, permanence or authority. Overall, the applicant company argued that its application complied with Article 35 § 2 (b) of the Convention and that any parallel proceedings should not undermine its case before the Court. B. The Court’s assessment 519. The Court will examine this issue under Article 35 § 2 (b) of the Convention, which reads as follows: “... 2. The Court shall not deal with any application submitted under Article 34 that ... (b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information. ...” 520. At the outset, the Court would reiterate that Article 35 § 2 (b) of the Convention is intended to avoid the situation where several international bodies would be simultaneously dealing with applications which are substantially the same. A situation of this type would be incompatible with the spirit and the letter of the Convention, which seeks to avoid a plurality of international proceedings relating to the same cases (see, among others, Smirnova v. Russia, (dec.) nos. 46133/99 and 48183/99, 3 October 2002, and Calcerrada Fornieles and Cabeza Mato v. Spain, no. 17512/90, Commission decision of 6 July 1992, Decisions and Reports (DR) 73). In determining whether its jurisdiction is excluded by virtue of this Convention provision the Court would have to decide whether the case before it is substantially the same as a matter that has already been submitted to a parallel set of proceedings and, if that is so, whether the simultaneous proceedings may be seen as “another procedure of international investigation or settlement” within the meaning of Article 35 § 2 (b) of the Convention. 521. The assessment of similarity of the cases would usually involve the comparison of the parties in the respective proceedings, the relevant legal provisions relied on by them, the scope of their claims and the types of the redress sought (see Vesa Peltonen v. Finland (dec.), no. 19583/92, 20 February 1995; Cereceda Martin and Others v. Spain, no. 16358/90, Commission decision of 12 October 1992; Smirnova, cited above, and Decision on the competence of the Court to give an advisory opinion [GC], § 31, ECHR 2004 ‑ VI). 522. As regards the analysis of the character of parallel proceedings, the Court’s examination would not be limited to a formal verification but would extend, where appropriate, to ascertaining whether the nature of the supervisory body, the procedure it follows and the effect of its decisions are such that the Court’s jurisdiction is excluded by Article 35 § 2 (b) (see Lukanov v. Bulgaria (dec.), 21915/93, Commission decision of 12 January 1995; Decision on the competence of the Court to give an advisory opinion [GC], cited above; Celniku v. Greece, no. 21449/04, §§ 39-41, 5 July 2007, and Peraldi v. France (dec.), no. 2096/05, 7 April 2009). 523. Turning to the case at hand, the Court finds that there is no need for it to examine whether the proceedings in the Hague brought by the company’s majority shareholders or the proceedings brought under the bilateral investment treaties brought by various groups of the company’s minority shareholders may be seen as “another procedure of international investigation of settlement” as it is clear that the cases are not “substantially the same” within the meaning of Article 35 § 2 (b) of the Convention for the following reasons. 524. The Court observes that it was Hulley Enterprises Ltd and Veteran Petroleum Ltd (both registered in Cyprus) and Yukos Universal Ltd (registered in the Isle of Man), which in February 2005 initiated arbitration proceedings against the Russian Federation before the Permanent Court of Arbitration in the Hague, referring, among other things, to the same events and proceedings as those complained of by the applicant company in the present application before the Court and alleging numerous violations of their rights as investors under the Energy Charter Treaty. Some of the company’s foreign minority shareholders also initiated similar proceedings under bilateral investment treaties. The Court notes, however, that despite certain similarities in the subject-matters of the present case and of the arbitration proceedings, the claimants in those arbitration proceedings are the applicant company’s shareholders acting as investors, and not the applicant company itself, which at that moment in time was still an independent legal entity. 525. The Court further notes that the present case has been introduced and maintained by the applicant company in its own name. Although the above-mentioned entities could arguably be seen as having been affected by the events leading to the applicant company’s liquidation, they have never taken part, either directly or indirectly, in the Strasbourg proceedings. The Court reiterates that in November 2007 the applicant company was liquidated and that despite this fact in its admissibility decision of 29 January 2009 it nevertheless accepted the application “because the issues raised by the case transcend[ed] the person and the interests of the applicant [company]” and “... striking the application out of the list under such circumstances would undermine the very essence of the right of individual applications by legal persons, as it would encourage governments to deprive such entities of the possibility to pursue an application lodged at a time when they enjoyed legal personality...”, which shows that the Court has throughout placed emphasis on the applicant company in its own right. 526. In these circumstances, the Court finds that the parties in the above-mentioned arbitration proceedings and in the present case are different and therefore the two matters are not “substantially the same” within the meaning of Article 35 § 2 (b) of the Convention. It follows that the Court is not barred, pursuant to this provision, from examining the merits of this case. II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 527. The Court notes that in the admissibility decision in this case it has established that Article 6 applied under its criminal head to the 2000 Tax Assessment proceedings and has declared admissible the company’s grievances that: (1) the Ministry had brought the action in these proceedings within the grace period; (2) the time to prepare for trial had been too short; (3) its lawyers could not obtain from the Ministry answers to all the questions they wished to ask in the hearings before the first-instance court and the first-instance court pronounced its judgment without having studied all the evidence; (4) the statutory time-limit for appeal had been unjustifiably abridged; (5) and that the appeal court had delayed the delivery of the reasons for its judgment thereby preventing the applicant company from lodging a cassation appeal. 528. The Court will examine these grievances under Article 6 of the Convention, which, in its relevant parts, provides as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... 3. Everyone charged with a criminal offence has the following minimum rights: (b) to have adequate time and facilities for the preparation of his defence; ...” A. The parties’ submissions 1. The applicant company’s submissions 529. As regards the first instance proceedings, at the admissibility stage of proceedings before this Court the applicant company argued that the supporting material underlying the Tax Assessment for 2000 had first been provided to it as a result of the City Court’s decision of 14 May 2004. It alleged that the disclosure did not occur until 17 May 2004, when the Ministry filed 24,000 pages of documents, and continued on 18 May 2004 with approximately 45,000 further pages and a further 2,000 pages late on 20 May 2004, i.e. on the eve of the first-instance hearing. The company conceded that its representatives had indeed been given access to all these materials, both prior to the hearings and during the trial, but submitted that the manner and time for such access had been so unsatisfactory that it was of no practical use. It also argued that it had been unable effectively to access the court’s filed documents during the first-instance hearings except during the lunch breaks. Overall, the company insisted that it had had insufficient time to prepare its defence and familiarise itself with the evidence before the court and that it had not had an opportunity to take cognisance of and comment on all of the evidence adduced or observations filed, nor to express its views on every document in the file, contrary to Article 6. It referred to the Ruiz-Mateos v. Spain and Krčmář v. Czech Republic cases. In their post-admissibility observations the company submitted that the Ministry had had sufficient time to disclose the evidence, as the relevant documents had been in the possession of the Ministry and that the Ministry could have disclosed them at any point from 8 December 2003 (some six months before the beginning of the hearing). It further noted that the documents filed by the Ministry had been in complete disorder and had been stored in nineteen plastic crates (ten of them containing six thousand pages each and nine more containing some four thousand pages each) and simply could not be studied properly over such a short period. The documents were kept in a room measuring three to four square metres and containing two chairs, a desk and one window. A request for additional space had been turned down. The above-mentioned conditions were reflected in a record dated 18 May 2004, drawn up by the applicant company’s counsel. The Ministry’s representative had refused to sign it and stated that he disagreed with its contents. More generally, the applicant company criticised the Ministry for bringing an action against it before the expiry of the grace period and argued that the first instance proceedings had been unfair because its lawyers could not obtain from the Ministry answers to all the questions they wished to ask in the hearings and that it was under the impression that the first-instance court had pronounced judgment without having studied all the evidence. 530. As regards the appeal proceedings, the applicant company also insisted on the breach of Article 6. It submitted that the domestic courts had failed to address the question of whether the abridgement of time had affected its substantive right to a fair hearing and that, equally, it did not rely on Article 267 of the Code of Commercial Courts Procedure, referred to by the respondent Government. Also, the rule in Article 267 requiring an appeal to be determined within one month is not respected in practice by the Russian courts; failure to comply with this requirement, even for a whole year, has no consequences for the proceedings. There was, according to the applicant company, no evidence of any particular urgency in listing or resolving the appeal: neither the Ministry, nor the co-appellant, OOO ‘YUKOS’ Moscow, sought expedition when their appeals were lodged and the co-appellant did not oppose the applicant company’s applications to adjourn the appeal hearing. In response to the Government’s criticism suggesting that the company’s appeal was misaddressed by the omission of part of the postal code from the envelope, the applicant stated that no evidence had been provided of any mistake in this respect and that, after all, the appeal had been received by the court and the tax authorities. In any event, the court had made no criticism of the company in relation to the exercise of this appeal. Overall, the abridgement of the appeal period was a serious interference with the company’s right to prepare for the appeal hearings, which failed to cure but rather accentuated the unfairness of the first-instance proceedings, and no substantive reason has been offered as to why this acceleration was lawful, necessary or consistent with the requirements of a fair trial. 531. The applicant company submitted in respect of the complaint about the delay in the delivery of the appeal judgment that the delay meant that the decision had been immediately enforced against the company, rendering any further cassation appeal nugatory. Only an application for a stay of enforcement pending an appeal in cassation, coupled with a valid appeal in cassation, could have been effective against the enforcement. In the company’s view, such a valid appeal was strictly dependent on filing of the reasons by the appeal court. The appeal decision had become subject to immediate forcible execution, the company had become liable for an additional surcharge of 7% of the total liability and the opportunity to exercise an effective appeal against these measures had been circumvented. 2. The Government’s submissions 532. As regards the argument that the company had insufficient time for preparation of the defence, the Government referred in their admissibility observations to the domestic legislation, which established a two-month time-limit for the examination of the case at first instance (Article 134 of the Code of Commercial Courts Procedure). The applicant company had at least 37 days to prepare its defence from the date of the filing of the suit, which, in view of the above time-limit, had not been unreasonable. Furthermore, the applicant company first became aware of the Ministry’s arguments on 29 December 2003, when the Ministry issued the report indicating the applicant company’s large tax liability and by 12 January 2004 the company had also filed its objections to the report under Article 100 (5) of the Tax Code. Moreover, the principal arguments contained in these objections remained unchanged throughout the proceedings. It could not be said therefore that the applicant company was unprepared to state its case, since it was well aware of the Ministry’s arguments five months prior to the beginning of the court proceedings. In addition, the Government pointed out that the applicant company’s lawyers were given an opportunity to study the evidence both in court and at the Ministry’s premises throughout May, June and July 2004. According to the documents submitted by the Government, counsel for the applicant company availed themselves of this opportunity at least on two occasions, on 18 and 19 May 2004 respectively. Lastly, the Government argued that the applicant company’s arguments about insufficient time for the preparation of the case had been carefully examined and eventually dismissed by the domestic courts as unfounded. In their post-admissibility observations the Government also submitted that the proceedings before commercial courts in Russia were generally conducted without serious delays (referring, for instance, to the lack of any cases against Russia on account of length of proceedings before the commercial courts). They further argued that in its submissions the applicant company had asserted generalities and had never mentioned any specific documents to which they had not had proper access. The evidence in question had been documents which were well known to the applicant company, as the Ministry had requested these documents from it during the on-site inspection (the Government relied on Article 101 (2) 4 of the Tax Code in this respect) and that the documents had been itemised in a register dated 17 May 2004 no. 14-3-02/22-13-1 and had been copies of original documentation reflecting the relations between the applicant company and its sham entities. In addition, the Government argued that any number of the company’s lawyers could have come to study the evidence and that the applicant company had apparently felt no need to do so, since it had been represented by eight lawyers in the first-instance proceedings and only two to four of them had studied the documents. Overall, the Government suggested that the dispute was more legal rather than factual, so that the crux of the applicant company’s objections concerned the interpretation of the domestic law rather than controversy about the particular circumstances of the tax evasion. In addition, the Government argued that the appeal hearing constituted a de novo examination of the case and that by then the applicant company had had a perfectly adequate opportunity to review the documentary record. By asking to adjourn the proceedings the applicant merely intended to delay the delivery of the judgment. 533. As regards the appeal proceedings, in the Government’s view they too were in compliance with Article 6. The applicant company had brought appeal proceedings against the first-instance judgment of 26 May 2004: the possibility of review on both points of fact and law had been expressly provided for by Russian law (Article 268 of the Code of Commercial Courts Procedure) and the company had used it. Under Article 267 of the Code of Commercial Courts Procedure, which requires an appeal court to examine the appeals by the parties within a month of the date on which they were filed, the Appeal Court had to examine the case within a month of 1 June 2004, which was the date on which one party to the case, OOO ‘YUKOS’ Moskva, first lodged an appeal brief, notwithstanding the fact that the applicant company lodged its appeal on 17 June 2004. The appeal hearings, which represented a full re-trial of the case within the meaning of Article 268 of the Code of Commercial Courts Procedure, started on 18 June and lasted eight days, that is, until 29 June 2004, which was in line with the above rule. In addition, the applicant company deliberately delayed the examination of the case by dispatching the appeal brief to an erroneous address. Lastly, the Government underlined that the appeal decision had not been final and had been appealed against by the applicant company both in cassation instance and by way of supervisory review. The Government submitted that the fact that the reasoned copy of the Appeal Court decision of 29 June 2004 had been produced on 9 July 2004 did not affect the fairness of the proceedings as, in any event, it was open to the applicant company to lodge its cassation appeal within a two-month time-limit from the date of delivery of the appeal decision on 29 June 2004, even in the absence of the reasoned copy of the decision. The applicant company had lodged its cassation appeal on 6 July 2004 in the absence of the reasoned copy of the appeal decision. The cassation appeal was accepted for consideration and on 17 September 2004 its full version was examined and dismissed by the Circuit Court. B. The Court’s assessment 534. The Court would reiterate that while Article 6 of the Convention guarantees the right to a fair hearing, it is not the Court’s function to deal with errors of fact or of law allegedly committed by a national court and the question which must be answered is rather whether the proceedings as a whole were fair (see, for example, Öcalan v. Turkey [GC], no. 46221/99, §§ 148-49, ECHR 2005 ‑ IV; Gäfgen v. Germany [GC], no. 22978/05, §§ 162-88, ECHR 2010 ‑ ...). The Court will examine the applicant company’s grievances in turn to make an overall conclusion in this connection. 1. The complaint about the bringing of the action by the Ministry 535. Turning to the applicant company’s complaint that in the proceedings before the Moscow City Court the action in respect of the Tax Assessment 2000 and the request to attach the company’s assets as a security for the claim was brought by the Ministry within the grace period (see paragraphs 25 and 26 ), the Court observes that this argument was examined by the Circuit Court, which dismissed it as unfounded and recognised the Ministry’s action as lawful in this respect (see paragraph 72 ). The Court recalls the the Ministry’s action was lodged under the rule which made it unnecessary to wait until the end of the grace period if there was evidence that the dispute was insoluble and, regard being had to the circumstances of the case, finds no indication of arbitrariness or unfairness within the meaning of Article 6 of the Convention in this connection. 2. The complaint about the allegedly insufficient time for preparation of the defence at first instance 536. The Court notes that it is common ground between the parties that during the first-instance proceedings the applicant company did not have access to the documents in the court file, other than the report of 29 December 2003, the decision of 14 April 2004 and their annexes, until 17 May 2004 when the Ministry invited the company’s lawyers to study the documents at its premises (see paragraphs 41 -45). It is also undisputed that the hearings in the case commenced on 21 May 2004, which is four working days later, and the evidence at issue amounted to at least 43,000 pages (see paragraphs 44 and 46 ). It is also not in dispute that on a few occasions the applicant company requested to adjourn the hearings referring to, among other things, their wish to study the evidence in the case, and that these requests were turned down by the trial court as unfounded (see paragraph 46 ). 537. The Court further notes that according to the applicant company this period was manifestly short, whilst the Government argued with reference to the sequence of the events in the proceedings and the applicant company’s conduct that it had no real need to study these documents since the documents came from the company itself and it was entirely familiar with them. The Government also argued that the appeal hearing constituted a de novo examination of the case and that by then the applicant company had had a perfectly adequate opportunity to familiarise itself with the evidence at issue. 538. The Court reiterates that the principle of equality of arms is one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may meet this requirement. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment on them (see Brandstetter v. Austria, 28 August 1991, §§ 66 and 67, Series A no. 211; Ruiz-Mateos v. Spain, 23 June 1993, § 67, Series A no. 262; mutatis mutandis, Milatová and Others v. the Czech Republic, no. 61811/00, § 65, ECHR 2005 ‑ V and, a fortiori, Krčmář and Others v. the Czech Republic, no. 35376/97, §§ 41-45, 3 March 2000). Furthermore, the Court reiterates that Article 6 § 3 (b) guarantees “adequate time and facilities for the preparation of his defence” and therefore implies that the substantive defence activity on the accused’s behalf may comprise everything which is “necessary” to prepare the trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Can v. Austria, no. 9300/81, § 53, Commission’s report of 12 July 1984, Series A no. 96, and Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008). The facilities which should be enjoyed by everyone charged with a criminal offence include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands (dec.), no. 29835/96, 15 January 1997, and Galstyan v. Armenia, no. 26986/03, § 84, 15 November 2007). 539. Turning to the case at hand, the Court observes that the Ministry’s claims to the applicant company in respect of the year 2000 were based on the audit report of 29 December 2003, which became available to the applicant company on the same date and was later used in the decision of 14 April 2004, served on the applicant on 15 April 2004. It is true that these two documents were very detailed, and contained the attachments to substantiate the Ministry’s position, and that the applicant company had on a few occasions opportunity to contest them. The fact remains, however, that the object of the trial court’s examination during the hearings of 21 to 26 May 2004 was neither the audit report of 29 December 2003 and the decision of 14 April 2004 as such, nor the copies of the documents allegedly already in possession of the applicant company, but rather the Ministry’s court claims based on the above-mentioned two documents and the additional body of evidence filed by the Ministry and comprising at least 43,000 pages. It is clear to the Court that in order to provide the applicant company with an adversarial trial and “adequate time and facilities for the preparation of [its] defence” the applicant company should have been given an adequate opportunity to study the entirety of these documents and, more generally, to prepare for the hearings of the merits of the case on reasonable terms. 540. Having regard to the parties’ arguments and the circumstances of the case, the Court is of the view that the trial court failed to reach this objective, as the mere four days during which the applicant company could have access to the case materials were insufficient for the applicant company to prepare properly, no matter the number of lawyers in its defence team or the amount of other resources which the applicant company would have been able to commit during its preparations. As regards the Government’s reference to the applicant company’s conduct during the proceedings and its argument that the company had no real need to study that evidence, the Court finds that it was incumbent on the trial court in the situation at hand to ensure that the applicant company had a sufficiently long period of time during which it could study such a voluminous case file and prepare for the trial hearings and it was up to the applicant company to use this time as it wished. As regards the Government’s argument that the trial court was simply doing its best to comply with the two-month time-limit set out in Article 215 of the Code of Commercial Court Procedure for examination of cases of this category, the Court is of the view that even though it is no doubt important to conduct proceedings at good speed, this should not be done at the expense of the procedural rights of one of the parties, especially given the relatively short overall duration of the proceedings for a case of such magnitude and complexity. 541. Overall, the Court is of the view that the applicant company did not have sufficient time to study the case file before the first instance hearings. 542. The Court takes note of the Government’s argument that any possible defects in the fairness of the proceedings at first instance have been remedied on appeal or in the cassation instance. Since this argument is too closely related to the applicant company’s complaint about the early beginning of the appeal hearings in the 2000 Tax Assessment case, the Court will examine them together below. 3. The complaints about the trial hearings and the allegedly bad quality of the first instance judgment 543. As regards the applicant company’s allegations that its lawyers could not obtain answers from the Ministry to all the questions they wished to ask in the hearings before the court and that the trial court abruptly interrupted the pleadings of the applicant company’s lawyer, the Court finds that these complaints are vague and unspecific and there is nothing in the company’s arguments to suggest that the conduct restrictions imposed by the first-instance or appeal court on the company’s counsel during the hearings were arbitrary or adversely affected the fairness of the proceedings as a whole. The Court also finds unsubstantiated the applicant company’s allegation that the Moscow City Court had given its judgment without having studied the evidence. 4. The complaints about the early beginning of the appeal hearings 544. The Court observes that under Articles 257 and 259 of the Code of Commercial Court Procedure a party has thirty days to file its appeal (see paragraph 422 above). It further notes that the full text of the first-instance judgment of 26 May 2004 became available to the parties on 28 May 2004 and that, despite the applicant company’s requests for adjournment, the appeal hearing in the case commenced on 18 and lasted until 29 June 2004 (see paragraphs 51, 57 and 58 ). 545. The Court finds that the beginning of the appeal proceedings on 18 June 2004, that is, twenty-one days after the full text of the first-instance judgment on 28 May 2004 had become available, restricted the applicant company’s ability to advance its arguments and, more generally, to prepare for the appeal hearings by shortening the statutory time-limit by nine days. Given the number of the participants, the complexity and magnitude of the case as well as the previous restrictions on the applicant company’s ability to study the case at first instance, the Court finds that the applicant company did not have “adequate time and facilities for the preparation of [its] defence” within the meaning of Article 6 § 3 (b) on account of the restricted time for preparation of the appeal hearing. It also finds that the appeal court failed to acknowledge, let alone to remedy the shortcomings committed by the first-instance court as regards the applicant company’s restricted access to the case file. 546. In so far as the Government relied on Article 267 of the Code of Commercial Court Procedure to justify the promptness in question, the Court would again reiterate that the legitimate goal of conducting proceedings at good speed should not have been achieved at the expense of the procedural rights of one of the parties, especially given the lack of any indication of unjustified delays in the proceedings which lasted at the first two instances for only 3 months and 15 days. In any event, the Court is not persuaded by the interpretation of the text of the provision in question suggested by the Government. It would take note of the fact that recently the domestic authorities themselves have found it necessary to modify and explain the provision in question by amending it (see paragraphs 422 and 423). In its present day version the time-limit in question lasts two months rather than one, and starts running only after the expiry of the time-limit for bringing appeals, and not simultaneously to it, as suggested by the Government in its submissions. In addition, the appeal court now has the discretion to increase the term up to six months, depending on the number of the participants and the complexity of the case. 547. Lastly, in so far as the respondent Government argued that the subsequent examination of the case at the cassation instance had remedied these shortcomings, the Court observes that the cassation hearing took place on 17 September 2004, four months after the disclosure of the evidence and about three months after the appeal hearing which took place between 18 and 29 June 2004. Despite the fact that the company may have had enough time to prepare for the cassation hearing, the cassation court, as a review court, had restricted competence in relation to the assessment of evidence already made by the first-instance and appeal courts (see paragraph 426) and, on the facts, it failed to recognize any shortcomings in the judgments of the lower courts (see paragraph 71 ). 548. Overall, the Court finds that the early beginning of the appeal hearing impeded the applicant company’s ability to prepare and present properly its case on appeal. 5. The complaint about the alleged delay in the production of a reasoned version of the appeal judgment 549. In so far as the applicant company also complained about the alleged delay in providing the reasons for the Appeal Court’s judgment in the proceedings in respect of the 2000 Tax Assessment, the Court would note that the applicant company did not complain about the proceedings in cassation as such but rather claimed that, in its situation, effective access to the cassation court was impossible without a stay of enforcement of the appeal decision of 29 June 2004. In this respect, the Court observes that the immediate enforcement of the appeal decision did not prevent the company from lodging its cassation appeal and whilst Article 6 provides an applicant with the right of access to court, it does not guarantee, as such, the right to an automatic stay of enforcement of an unfavourable court decision. The Court would underline that the applicant company in the present case had access to courts of two levels of jurisdiction before any enforcement measures were taken and that the enforcement of the appeal decision of 29 June 2004 did not make it impossible for the applicant company to exercise its right to appeal in cassation, or to pursue further proceedings by way of supervisory review or before the Constitutional Court. The applicant company lodged its cassation appeal and additional submissions on the basis of the reasoned copy of the appeal decision of 29 June 2004 on 7 July 2004 (see paragraph 67 ). The appeal was accepted for consideration, and on 17 September 2004 its full version was examined and dismissed by the Circuit Court (see paragraph 70 ). Not only the cassation appeal, but also the request to stay the enforcement of the appeal decision of 29 June 2004 were examined by the domestic courts at two instances and eventually dismissed as unfounded (see paragraphs 127 - 129 ). 550. Overall, the Court concludes that there is no indication of unfairness within the meaning of Article 6 on account of the alleged restrictions on the applicant company’s access to the cassation instance. 6. Conclusion 551. Having regard to the above, the Court finds that the applicant company’s trial did not comply with the procedural requirements of Article 6 of the Convention for the following reasons: the applicant company did not have sufficient time to study the case file at first instance, and the early beginning of the hearings by the appeal court unjustifiably restricted the company’s ability to present its case on appeal. The Court finds that the overall effect of these difficulties, taken as a whole, so restricted the rights of the defence that the principle of a fair trial, as set out in Article 6, was contravened. There has therefore been a violation of Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (b). III. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 1, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLES 1, 7, 13, 14 AND 18 OF THE CONVENTION 552. Under Article 1 of Protocol No. 1, taken alone and in conjunction with Articles 1, 7, 13, 14 and 18 of the Convention, the applicant company complained about the allegedly unlawful, arbitrary and disproportionate imposition and enforcement of the 2000-2003 Tax Assessments. The company complained furthermore that the sale of OAO Yuganskneftegaz had been unlawful, arbitrary and disproportionate. 553. These grievances fall to be examined principally under Article 1 of Protocol No. 1, regard being had, where appropriate, to other Convention provisions relied on by the applicant company. Article 1 of Protocol No. 1 reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 554. The Court reiterates that in accordance with its constant and well-established case-law Article 1 of Protocol No. 1 comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph. The three rules are not, however, “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 61, Series A no. 52, and James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98). 555. The Court notes that between December 2003 and January 2005 the domestic authorities subjected the applicant company to a number of measures in connection with its alleged failure to pay the correct amount of tax for the years 2000-2003. In particular, as a result of the Tax Assessment proceedings the applicant company was found guilty of repeated tax fraud and was ordered to pay an overall sum of at least RUB 572 billion (around EUR 16 billion) in outstanding taxes, default interest and penalties. In the enforcement proceedings, simultaneously conducted, the applicant company was ordered to pay an additional 7% enforcement fee on the overall amount of the debt: its assets were attached and seized, whilst 76.79 percent of shares in its main production unit, OAO Yuganskneftegaz, were sold in satisfaction on the mentioned liability. 556. The Court notes that the parties did not dispute that these measures, whether taken alone or together, constituted an interference with the applicant company’s property rights as guaranteed by Article 1 of Protocol No. 1. The Court further notes that the company complained about the measures separately and that it also complained about the Government’s intentions in connection with those measures. In this latter respect, the applicant company argued that, in bringing the relevant proceedings, the authorities had sought to destroy the company and expropriate its assets. The Court has now to satisfy itself that each instance of such interference met the requirement of lawfulness, pursued a legitimate aim and was proportionate to the aim pursued. 557. Having regard to the circumstances of the case and the nature of the applicant company’s complaints, the Court finds that the complaints concerning the separate decisions and measures in the context of the proceedings against the applicant company fall to be examined under the third rule of Article 1 of Protocol No. 1, taken in conjunction, where appropriate, with other Convention provisions relied on by the applicant company. The Court will examine the complaints in the following order: (A) the complaints about various aspects of the tax assessment proceedings for the years 2000-2003; (B) the complaints concerning the measures taken by the domestic authorities to enforce the debt resulting from the tax assessment proceedings on the applicant company and the Government’s related plea of non-exhaustion, which in the decision on admissibility of 29 January 2009 it joined to the merits; (C) the applicant company’s allegations concerning the Government’s intentions in these proceedings, made under Article 18 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. A. The complaints about the Tax Assessments 2000-2003 558. The Court reiterates that it was not in dispute between the parties that the Tax Assessments 2000-2003 represented an interference with the applicant company’s property rights. It remains to be determined whether these decisions met the requirement of lawfulness, pursued a legitimate aim, were proportionate to the aim pursued, as required by Article 1 of Protocol No. 1, and whether they were not discriminatory within the meaning of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. 1. Compliance with Article 1 of Protocol No. 1 (a) Whether the Tax Assessments 2000-2003 complied with the Convention requirement of lawfulness 559. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second paragraph recognises that the States have the right to control the use of property by enforcing “laws” (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 ‑ II). This means that the interference should be in compliance with the domestic law and that the law itself be of sufficient quality to enable an applicant to foresee the consequence of his or her conduct. As regards the compliance with the domestic law, the Court has limited power in this respect since it is a matter which primarily lies within the competence of the domestic courts (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 47, Series A no. 171 ‑ A, and, mutatis mutandis, Tre Traktörer AB v. Sweden, 7 July 1989, § 58, Series A no. 159). As regards the quality of the law, the Court’s task is to verify whether the applicable provisions of domestic law were sufficiently accessible, precise and foreseeable (see Hentrich v. France, 22 September 1994, § 42, Series A no. 296-A, and Lithgow and Others v. the United Kingdom, 8 July 1986, § 42, Series A no. 110). In so far as the tax sphere is concerned, the Court’s well-established position is that States may be afforded some degree of additional deference and latitude in the exercise of their fiscal functions under the lawfulness test (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, §§ 75-83, Reports 1997 ‑ VII) and that, in view of the complexity of the relevant field of regulation, corporate entities, as opposed to individual taxpayers, may be required to act with additional caution and diligence by consulting competent specialists in this sphere (see Špaček, s.r.o., v. the Czech Republic, no. 26449/95, § 59, 9 November 1999). 560. The applicant company argued in respect of the Tax Assessment 2000 that prosecution for tax evasion had been time-barred. Furthermore, it also argued that the decisions in question had been generally unlawful in that they had not been based on any reasonable and foreseeable interpretation of the domestic law, for which reason there had been no basis in law to impose taxes, double fines or to deny the repayment of VAT in respect of the export of oil and oil products. The applicant company also complained that it had been the first entity ever to have been punished for the tax optimisation scheme, hitherto generally tolerated. i. The allegation that the prosecution for the alleged tax evasion during the year 2000 was time-barred α. The applicant company’s submissions 561. The applicant company complained that in the Tax Assessment proceedings for the year 2000 the domestic courts had failed to apply the three-year statutory time-bar set out in Article 113 of the Tax Code. Since the relevant claims by the Ministry had been time-barred by virtue of Article 113 of the Tax Code, the Tax Assessment 2000 had been unlawful, unforeseeable and retroactive in the light of the decision of the Constitutional Court of 14 July 2005. It also noted that this domestic provision applied to tax assessments proceedings in general and not just to fines and that the doubling of the fines for the year 2001 had also been unlawful. β. The Government’s submissions 562. The Government disagreed. They underlined that the issue only concerned the fines for the year 2000, and not reassessed taxes or surcharges. They argued that the decision of the Constitutional Court of 14 July 2005 had simply confirmed the proper application of Article 113 of the Tax Code for all taxpayers, that it explained the meaning of this norm, that this meaning had been in line with international practice and that it had not been aimed at the applicant individually. The Government also stated that the decision had concerned the specific situation of a bad-faith tax evasion where a taxpayer hinders and obstructs tax inspections, and also relied on examples from foreign jurisdictions, where specific rules apply to taxpayers in such situations. They quoted certain Russian cases where the courts applied the Constitutional Court’s ruling in a manner similar to that in the applicant company’s case and also referred to the Court’s judgment in the case of National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the UK. They also noted that the three-year time-limit had not been particularly long and that in other countries time-limits were even longer. γ. The Court’s assessment 563. The Court finds at the outset that this grievance concerns the outcome of the Tax Assessment proceedings for the year 2000 only in the part concerning the imposition of penalties, since Article 113 of the Tax Code which provided for the time-limit in question, only applied to the collection of fines (see paragraph 403 ) and that no similar Convention issues arise in respect of the collection of additional taxes and interest payments (see paragraph 404). The Court further notes that Article 113 of the Tax Code provided for a three year time-limit for holding a taxpayer liable and that this period ran from the first day after the end of the relevant tax term. According to the practice directions of the Supreme Commercial [7] Court dated 28 February 2001, the moment at which a taxpayer was held liable within the meaning of Article 113 of the Tax Code was the date of the relevant decision of the tax authority (see paragraph 405 and 406). 564. On the facts, such a decision in connection with the company’s activities in the year 2000 was adopted on 14 April 2004 (see paragraph 21 ), which was clearly outside the above-mentioned three year time-limit. In response to the argument raised by the applicant company during the court proceedings, the lower courts decided that the rules on a statutory time-bar were inapplicable because the applicant company had been acting in bad faith (see paragraph 49 ). Thereafter the supervisory review instance decided that such an interpretation of the rules on the statutory time-limits had not been in line with the existing legislation and case-law (see paragraph 80 ) and referred the issue to the Presidium of the Supreme Commercial Court, which, in turn, referred it to the Constitutional Court (see paragraph 81 ). 565. Having initially refused to consider the applicant company’s individual complaint concerning the same issue (see paragraphs 76 and 77), the Constitutional Court accepted the reference from the Presidium of the Supreme Commercial Court and on 14 July 2005 gave a decision in which it disagreed with the lower courts (see paragraphs 82 -88), noting that the rules on the limitation period should apply in any event and that, exceptionally, if a taxpayer impeded the inspections by the tax authorities, and thereby delayed the adoption of the relevant decision, the running of the time-limit could be suspended by the adoption of a tax audit report setting out the circumstances of the tax offence in question and referring to the relevant articles of the Tax Code. Thereafter the case was referred back to the Presidium of the Supreme Commercial Court which applied this interpretation to conclude that the applicant company had been actively impeding the tax inspections (see paragraphs 17 and 90 ). Since the audit report in respect of the year 2000 had been adopted and served on 29 December 2003, the court decided that the Ministry’s claims for 2000 had been brought on time. The Court notes that the Constitutional Court’s decision of 14 July 2005 resulted in a change in the interpretation of the relevant rules on the statutory time-limits of the proceedings. Accordingly, an issue arises as to whether such a change was compatible with the requirement of lawfulness of Article 1 of Protocol No. 1. 566. In making its assessment the Court will take into account its previous finding that the 2000 Tax Assessment proceedings were criminal in character (see OAO Neftyanaya kompaniya Yukos (dec.), cited above, § 453) and will also bear in mind that the change in question concerned the collection of fines for intentional evasion of tax. In this connection, it would again reiterate that the third rule of this Convention provision explicitly reserves the right of Contracting States to pass “such laws as they may deem necessary to secure the payment of taxes” which means that the States are afforded an exceptionally wide margin of appreciation in this sphere (see Tre Traktörer AB v. Sweden, 7 July 1989, §§ 56-63, Series A no. 159). 567. The Court reiterates the principle, contained primarily in Article 7 of the Convention but also implicitly in the notion of the rule of law and the requirement of lawfulness of Article 1 of Protocol No. 1, that only law can define a crime and prescribe a penalty. While it prohibits, in particular, extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with appropriate legal assistance, what acts and omissions will make him criminally liable (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, §§ 145-146, ECHR). 568. Furthermore, the term “law” implies qualitative requirements, including those of accessibility and foreseeability (see, among other authorities, Cantoni v. France, 15 November 1996, § 29, Reports of Judgments and Decisions 1996 ‑ V; and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence in question carries (see Achour v. France [GC], no. 67335/01, § 41, ECHR 2006 ‑ IV). The Court has acknowledged in its case-law that however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, mutatis mutandis, Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30 and Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260 ‑ A). The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (see Cantoni, cited above, § 29). 569. Thus, the requirement of lawfulness cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (see Kafkaris v. Cyprus [GC], no. 21906/04, § 141, ECHR 2008 ‑ ...). 570. The Court previously defined limitation as the statutory right of an offender not to be prosecuted or tried after the lapse of a certain period of time since the offence was committed. Limitation periods, which are a common feature of the domestic legal systems of the Contracting States, serve several purposes, which include ensuring legal certainty and finality and preventing infringements of the rights of defendants, which might be impaired if courts were required to decide on the basis of evidence which might have become incomplete because of the passage of time (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 51, Reports 1996 ‑ IV). 571. Turning to the facts of the case, the Court would note firstly that the rule which, in the present case, underwent changes as a result of the decision of 14 July 2005, was contained in Article 113 of Chapter 15 “General provisions concerning the liability for tax offences” of the Tax Code (see paragraph 403 ) and thus formed a part of the domestic substantive law. Even though the rule in itself did not describe the substantive elements of the offence and the applicable penalty, it nevertheless constituted a sine qua non condition with which the authorities had to comply in order to be able to prosecute the relevant taxpayers in connection with the alleged tax offences. Accordingly, Article 113 of the Tax Code defined a crime for the purposes of the Court’s analysis of lawfulness. It remains to be determined whether in the circumstances the decision of 14 July 2005 could be seen as a gradual clarification of the rules on criminal liability which “[was] consistent with the essence of the offence and could reasonably be foreseen” (see Kafkaris, cited above, § 141). 572. In this connection the Court may accept that the change in question did not change the substance of the offence. The Constitutional Court interpreted the existing rules on time-limits in relation to taxpayers who acted abusively. At the same time, the Court is not persuaded that the change in question could have been reasonably foreseen. 573. It observes that the decision of 14 July 2005 had changed the rules applicable at the relevant time by creating an exception from a rule which had had no previous exceptions (see paragraphs 86 and 88). The decision represented a reversal and departure from the well-established practice directions of the Supreme Commercial Court (see, by contrast, Achour, cited above, § 52) and the Court finds no indication in the cases submitted by the parties suggesting a divergent practice or any previous difficulty in connection with the application of Article 113 of the Tax Code at the domestic level (see paragraphs 407-408). Although the previous jurisprudence of the Constitutional Court contained some general references to unfavourable legal consequences which taxpayers acting in bad faith could face in certain situations, these indications, as such, were insufficient to provide a clear guidance to the applicant company in the circumstances of the present case. 574. Overall, notwithstanding the State’s margin of appreciation in this sphere, the Court finds that there has been a violation of Article 1 of Protocol No. 1 on account of the change in interpretation of the rules on the statutory time-bar resulting from the Constitutional Court’s decision of 14 July 2005 and the effect of this decision on the outcome of the Tax Assessment 2000 proceedings. 575. Since the applicant company’s conviction under Article 122 of the Tax Code in the 2000 Tax Assessment proceedings laid the basis for finding the applicant company liable for a repeated offence with a 100% increase in the amount of the penalties due in the 2001 Tax Assessment proceedings, the Court also finds that the 2001 Tax Assessment in the part ordering the applicant company to pay the double fines was not in accordance with the law, as required by Article 1 of Protocol No. 1. ii. The allegation that the Tax Assessments 2000-2003 had not been based on a reasonable and foreseeable interpretation of the domestic law α. The applicant company’s submissions 576. The applicant company disagreed with the factual conclusions reached by the domestic courts in respect of the trading companies. In its submission on the admissibility of the case, the applicant company argued that it had been the wrong defendant in the tax assessment proceedings, that there had been no links of dependency between the trading companies and itself, and that there were no grounds for making the applicant company, a holding company with, at the material time, only two employees with highly important but small-scale administrative functions, liable for the trading companies’ tax liabilities and creating a previously virtually unknown concept of “bad-faith taxpayer”. In its submissions on the merits of the case, the applicant company argued that “the Yukos Group”, including the trading companies, had operated as a unit and that the authorities had been aware of all the details of this unit’s functioning, including its relations with the trading companies, because all the entities forming the group made regular tax declarations. The company also submitted that the Ministry made regular checks of the whole group, involving the mapping of the entire course of every link in the chain of transactions from the original purchase of oil by the trading companies until its export, and that Yukos officials held monthly meetings with the Ministry’s officials to discuss the company’s functioning and tax returns. Overall, the applicant company considered that its tax arrangement had never been secret. 577. The applicant company also submitted that Russian law had contained no legal provision allowing for the attribution of tax liabilities as had occurred in its case, that the denial of VAT reductions had been unlawful, that the use of domestic off-shores by the applicant company had been lawful, that the legal theories used by the authorities in its case had been without legal precedent, that the way in which the authorities had assessed taxes had led to double taxation, and that the payment of interest and fines had been domestically unlawful. As regards the attribution of tax liabilities, the applicant company considered that Russian law contained no provisions that permitted piercing of the corporate veil in order to hold one company liable for the actions of another, whether the latter was a subsidiary, an affiliate or a separate entity. The company claimed that the legal theories used by the Ministry in its tax assessment cases had been unprecedented and it referred to legal remedies that could have been used by the Ministry in this situation but had not been employed. In particular, the applicant company argued that the authorities should have applied the anti-transfer pricing mechanism of Articles 20 and 40 of the Tax Code or that the courts should have invalidated individual transactions by the trading companies so as to make either them or the applicant company’s subsidiaries liable for the allegedly underpaid tax. The applicant company considered that in any event, under the applicable domestic law, the authorities could not have held it directly liable for the actions of the trading companies. Furthermore, the company relied on Article 251 (1) 11 of the Tax Code to justify the unilateral transfers of cash from the trading companies to the applicant company’s Fund. It argued that there had been no such notion as “sham entity” in Russian law and that the “bad faith” doctrine had been too vague a legal tool to be used to prosecute it. The applicant company also submitted to the Court an opinion dated 7 September 2003 by the company’s counsel, the law firm “Pepelyev, Goltsblat i Partnery”, confirming the lawfulness of the arrangement whereby “a subsidiary company makes a transfer of its profits to the parent company, which in turn creates a Fund [out of these monies] to return them to the subsidiary companies for use ... or to pay the dividends” and also relied on case no A42-6604/00-15-818/01 to demonstrate that its tax arrangement had been lawful at domestic level. Lastly, the applicant company considered that the Government’s explanations in this connection and in particular its reference to Articles 168, 169 and 170 of the Civil Code could not justify the authorities’ actions in the tax assessment proceedings, since these provisions had not been relied upon by the domestic courts. 578. The applicant company further argued that the denial of tax benefits to the trading companies and the failure to repay VAT in respect of the export of oil and oil products had been unlawful and unsubstantiated. The applicant argued that the Ministry had known about all of the trading companies’ transactions because of their monthly VAT returns and regular requests for tax refunds, and that since all of the traded oil had been for export and exempt from VAT its use of tax arrangements with the trading companies had not achieved any savings in this connection. Both in its initial application to the Court and in further submissions on the admissibility of the case, the applicant company expressed dissatisfaction with the domestic courts’ refusal to recalculate the amount of the VAT due in the relevant Tax Assessment proceedings, purportedly as a result of the company’s failure to file for VAT refunds in its own name. In its final submissions to the Court at the hearing on 4 March 2010, the company alleged that on 31 August 2004 it had filed the VAT exemption forms in its own name for each of the years 2000 to 2003. In addition, with reference to Article 75 (3) of the Tax Code, the applicant company claimed that it should not have been ordered to pay interest surcharges at all. β. The Government’s submissions 579. In their admissibility observations the Government stated that the tax inspections in respect of the applicant company had been conducted in accordance with the domestic law and that the company had been acting in bad faith throughout the proceedings, in blatant breach of tax legislation, and had merely been mimicking compliance with the law. In respect of the factual conclusions of the domestic courts, they argued that the applicant company had committed blatant tax evasion, as confirmed by the findings of the domestic courts. The evidence to confirm the Ministry’s claims was abundant and it was clear that the whole setup with trading companies was organised solely for the purpose of tax evasion. During the proceedings the applicant company had been unable to explain the economic reasons for the transactions in question. As an example of the sham nature of the arrangement, the Government referred to the fact, established by the domestic courts in the proceedings against the applicant company, that on one occasion a person managing one of the company’s sham entities signed three contracts simultaneously in three different locations, namely Samara, Nefteyugansk and the Tomsk region, situated at great distances from each other. In addition, the Government referred to an “internal” opinion by the audit company PriceWaterhouseCoopers, which specifically mentioned various problems with the applicant company’s “tax optimisation” scheme, including the Fund used by the company for receiving the money generated by the sham entities, and mentioned by the Appeal Court in its decision of 29 June 2004. This was in breach of the Russian legislation, as money could only be transferred from one independent commercial entity to another independent commercial entity in exchange or payment for services or goods (Article 575 of the Civil Code). In addition, the company misled the public in its reports and financial statements. For example, in February 2004 in its report for nine months of the year 2003 under the US Generally Accepted Accounting Principles standards, the company accounted for the difference between the nominal profit tax rate and the actual rate by its use of affiliate companies registered in foreign tax havens. This statement was not true since, as established by the domestic courts, the applicant company used sham entities located in domestic tax havens. The widespread use of promissory notes was also mentioned by the auditor as being non-compliant with the legislation in force. The Government submitted that the company’s management had used this opportunity to present a distorted picture of the company’s performance and thus attract investors. 580. As regards the lawfulness of the company’s use of domestic tax havens, the Government referred to statements by a senior partner in the law firm “Pepelyaev, Goltsblat i Partnery”, which advised the applicant company and its majority shareholder, Group Menatep. In an interview with the Raschyot magazine of 30 January 2001, he stated that, as time passed, any widely replicated optimisation scheme became known to the tax authorities and they started fighting it. Penalties were being imposed with regard to low quality schemes, but the better quality schemes remained safe. The use of Russian low-tax regions was a crude form: where a company was registered in, for example, Kalmykiya, while the director, office and bank account were in Moscow. In such instances the court would rule that the location of the organisation was Moscow and not Kalmykiya. The scheme would be ruined and the company be forced to pay in Moscow. However, there could be more subtle schemes, where everything was arranged in such a way that the director, accountant and some staff were in Kalmykiya and there was an account in a Kalmyk bank, [and] thus the organisation would appear to have an actual presence there. Certainly, business would be conducted in Moscow but through another company, so that the entire profit went through appropriate contracts to Kalmykiya. Such subtle schemes were left untouched because formally there was nothing to pick on. According to the Government, the applicant company used the schemes described in their crudest form and undoubtedly knew that such schemes were illegal. 581. In respect of the lawfulness of the domestic authorities’ actions, the Government submitted that the company’s tax liability had been established by the domestic courts on the basis of, among other things, Article 122 of the Tax Code, which penalised the understatement of revenues and corresponding taxes, RF Law no. 2116-1 of 27 December 1991 “On profit tax of enterprises and organisations”, RF Law no. 1759-I of 18 October 1991 “On road funds in the Russian Federation”, RF Law no. 2118-I of 27 December 1991 “On the basics of the tax system”, RF Law no. 2030-I of 13 December 1991 “On property tax of enterprises”, RF Law no. 1992-I of 6 December 1991 “On valued-added tax” and RF Law no. 3297-I of 14 July 1992 “On closed administrative territorial entities”, which were all clear and foreseeable at the relevant time. 582. In their post-admissibility observations, the Government submitted that the company’s tax arrangement, consisting of the systemic use of dozens of shell entities which were controlled by the applicant company, organised in special low-tax zones within Russia, transfers of profits from the shell entities to the applicant company and multiple layers of trading activities between the company’s production units and the ultimate customer, had been clearly unlawful and had one and only one aim – to avoid payment of taxes. The applicant company tried to hide its involvement in this scheme by renaming the shell entities on a regular basis and by operating through a complex system of promissory notes’ exchanges aimed at hiding the transfers of profits from the shell entities to the company. The whole setup had been managed by the applicant company, although on paper the shell entities had been owned and managed by third parties. 583. The Government also described instances where the applicant company had actively resisted the authorities by failing to present the necessary tax documents following requests by the Ministry, by attempting to hide its corporate register just prior to its seizure by the bailiffs, by making multiple offers of payment with shares in OAO Sibneft (which in reality had not belonged to the applicant company), by lying about its financial status and by rejecting the Ministry’s tax claims in respect of years 2001 to 2003 instead of cooperating. 584. As regards the lawfulness of the manner in which the authorities had assessed the applicant company’s liability for additional taxes, the Government relied on the Constitutional Court’s judgment no. 14-P dated 28 October 1999, which had endorsed the ‘substance-over-form’ approach, and to the extensive case-law of the commercial courts in interpreting and applying it. In all of these cases, exactly the same method as that used by the authorities in the applicant company’s case had been used – i.e. the courts had looked behind appearances and taken account of the substance of the transactions in question. As regards the bad-faith theory, the Government relied on two decisions of the Constitutional Court, nos. 138-O and 168-O, dated 25 July 2001 and 8 April 2004 respectively, and the case-law of the commercial courts. They also relied on international experience, quoting rules adopting the substance over form approach in the UK, France, Germany, Italy and the US. 585. As regards the VAT repayments, the Government insisted that the domestic law clearly adopted an approach whereby the owner of the goods in question should apply for any VAT reductions and relied on judgment no. 12-P of the Constitutional Court, dated 14 July 2003, and the extensive case-law of the commercial courts to substantiate their point. They also referred to rules in the UK and France to show that these countries used essentially the same approach in respect of VAT refunds. More generally, the Government also argued that the refusal to grant VAT repayment was a direct consequence of the company’s own recklessness in operating its tax optimisation plans and that it had failed to make any attempts to comply with the legal requirements for VAT refunds even after the tax fraud had been exposed. The Government submitted that the applicant company had never made any applications for VAT refunds in its own name. 586. The Government also stated that all of the cases cited in their observations had been available in the legal database Konsultant-Plus. The authorities could not be accused of having tolerated the company’s tax optimisation, as they could not have had any prior knowledge of it on account of its complex and well-masked character. They also argued that the present case had a moral and social dimension, in the sense that the applicant company had been one of the biggest taxpayers in Russia, that many social programmes run by the State had depended on the company’s tax payments, that the company’s resources had been transferred to it during privatisation in exchange for their efficient and honest use, and that the colossal scope of the tax evasion had led to an incorrect redistribution of wealth and the denial of their social responsibility by a small number of the company’s core shareholders. The Government also insisted that the Court take into account the wide margin of appreciation which is mentioned in the Convention and recognised by the Convention case-law in any assessment of the company’s complaints. They disagreed with the applicant company’s argument regarding expropriation, as the Government viewed the events referred to by the applicant company as a mere enforcement of tax laws. In addition, they drew the Court’s attention to the fact that the applicant company had consistently presented incomplete or untrue information in their arguments. 587. Lastly, they again referred to the statements on tax optimisation techniques made in 2001 by a senior partner in a law firm advising the applicant company and its controlling shareholder, in which, in the Government’s opinion, he had openly conceded that the company’s techniques had been unlawful and that everything depended on whether or not the given arrangements would be discovered by the authorities. In the Government’s view, if this adviser knew this, then his clients, the company’s majority shareholders, could not have failed to be aware of the unlawfulness of the arrangement and any associated risk. γ. The Court’s assessment 588. The Court notes that in this complaint the applicant company challenged the lawfulness of the Tax Assessments 2000-2003 only in the part linked to the payment of reassessed taxes. The examination will therefore be confined to the question of the lawfulness of the additional tax liability. The Court further notes that the company did not seem to dispute that the relevant laws made it clear what taxes were due, at what rate and when. Rather, the company claimed that in 2000, 2001, 2002 and 2003 it used lawful “tax optimisation techniques” which were only subsequently condemned by the domestic courts in 2004, 2005 and 2006. It also complained that any existing legal basis for finding the company liable fell short of the Convention requirements in respect of the quality of the law and that, in any event, the application of the relevant laws contradicted established practice. Accordingly, the Court has to determine whether the relevant tax arrangements were domestically lawful at the time when the relevant transactions took place and whether the legal basis for finding the applicant company liable was sufficiently accessible, precise and foreseeable. 589. Turning to the first question, the Court would note at the outset that the applicant company disputed the findings of the domestic courts concerning the nature of relations between the applicant company and its trading entities. In view of its conclusion that the tax assessment proceedings in respect of the year 2000 did not comply with the requirements of Article 6 §§ 1 and 3 (b) of the Convention, the Court is required to decide whether the factual assessments made by the domestic courts could be used for the purposes of its legal analysis under Article 1 of Protocol No. 1. In this respect, the Court reiterates that according to its well-established case-law it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them and establish the facts. The Court will not, in principle, intervene, unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable (see, mutatis mutandis, Ravnsborg v. Sweden, 23 March 1994, § 33, Series A no. 283 ‑ B; Bulut v. Austria, 22 February 1996, § 29, Reports of Judgments and Decisions 1996 ‑ II, and Tejedor García v. Spain, 16 December 1997, § 31, Reports 1997 ‑ VIII) or if the court decisions have been issued in “flagrant denial of justice” (compare Stoichkov v. Bulgaria, no. 9808/02, § 54, 24 March 2005). 590. Having examined the materials of the case and the parties’ submissions and despite its earlier conclusions under Article 6 §§ 1 and 3 (b) of the Convention in respect of the 2000 Tax Assessment (see paragraph 551), the Court has little doubt that the factual conclusions of the domestic courts in the Tax Assessment proceedings 2000-2003 were sound. The factual issues in all of these proceedings were substantially similar and the relevant case files contained abundant witness statements and documentary evidence to support the connections between the applicant company and its trading companies and to prove the sham nature of the latter entities (see paragraphs 14 - 18, 48, 62- 63, 165, 191-193, 212 and 213). The applicant company itself did not give any plausible alternative interpretation of this rather unambiguous evidence, as examined and accepted by the domestic courts. 591. From the findings of the domestic courts and the parties’ explanations, the Court notes that the company’s “tax optimisation techniques” applied with slight variations throughout 2000-2003 consisted of switching the tax burden from the applicant company and its production and service units to letter-box companies in domestic tax havens in Russia. These companies, with no assets, employees or operations of their own, were nominally owned and managed by third parties, although in reality they were set up and run by the applicant company itself. In essence, the applicant company’s oil-producing subsidiaries sold the extracted oil to the letter-box companies at a fraction of the market price. The letter-box companies, acting in cascade, then sold the oil either abroad, this time at market price or to the applicant company’s refineries and subsequently re-bought it at a reduced price and re-sold it at the market price. Thus, the letter-box companies accumulated most of the applicant company’s profits. Since they were registered in domestic low-tax areas, they enabled the applicant company to pay substantially lower taxes in respect of these profits. Subsequently, the letter-box companies transferred the accumulated profits unilaterally to the applicant company as gifts. The Court observes that substantial tax reductions were only possible through the mixed use and simultaneous application of at least two different techniques. The applicant company used the method of transfer pricing, which consisted of selling the goods from its production division to its marketing companies at intentionally lowered prices and the use of sham entities registered in the domestic regions with low taxation levels and nominally owned and run by third persons (see paragraphs 14 - 18, 48, 62- 63 for a more detailed description). 592. The domestic courts found that such an arrangement was at face value clearly unlawful domestically, as it involved the fraudulent registration of trading entities by the applicant company in the name of third persons and its corresponding failure to declare to the tax authorities its true relation to these companies (see paragraphs 311, 349-353, 374-380). This being so, the Court cannot accept the applicant company’s argument that the letter-box entities had been entitled to the tax exemptions in questions. For the same reason, the Court dismisses the applicant company’s argument that all the constituent members of the Yukos group had made regular tax declarations and had applied regularly for tax refunds and that the authorities were thus aware of the functioning of the arrangement. The tax authorities may have had access to scattered pieces of information about the functioning of separate parts of the arrangement, located across the country, but, given the scale and fraudulent character of the arrangement, they certainly could not have been aware of the arrangement in its entirety on the sole basis on the tax declarations and requests for tax refunds made by the trading companies, the applicant company and its subsidiaries. 593. The arrangement was obviously aimed at evading the general requirements of the Tax Code, which expected taxpayers to trade at market prices (see paragraphs 395-399), and by its nature involved certain operations, such as unilateral gifts between the trading companies and the applicant company through its subsidiaries, which were incompatible with the rules governing the relations between independent legal entities (see paragraph 376). In this connection, the Court finds relevant the warning given by the company’s auditor about the implications of the use of the company’s special fund during the year 2002 (see paragraphs 206 - 209 ) and is not persuaded by the applicant company’s reference to case no. A42-6604/00-15-818/01 (see paragraphs 356 - 357 ), the expert opinion of its counsel (see paragraph 577) and its reliance on Article 251 (1) 11 of the Tax Code (see paragraph 376). 594. By contrast to the Tax Assessments in issue, the respondent entity in case no. A42-6604/00-15-818/01 was not alleged to have been part of a larger tax fraud and the Ministry failed to prove that it had been sham. The courts established that the entity had some assets, employees and a bank account at the place of its registration and dismissed the Ministry’s claims. As regards the expert opinion and the company’s reference to Article 251 (1) 11 of the Tax Code, the Court finds them irrelevant as they refer to the relations of openly associated companies and not, as was the case at issue, to the use of sham entities fraudulently registered in the name of certain third parties. Thus, the Court cannot agree with the applicant company’s allegation that its particular way of “optimising tax” had been previously examined by the domestic courts and upheld as valid or that it had used lawful “tax optimisation techniques” which were only subsequently condemned by the domestic courts. The above considerations are sufficient for the Court to conclude that the findings of the domestic courts that applicant company’s tax arrangements were unlawful at the time when the company had used them, were neither arbitrary nor manifestly unreasonable. 595. The Court will now turn to the question whether the legal basis for finding the applicant company liable was sufficiently accessible, precise and foreseeable. In this connection, the Court notes that in all the Tax Assessments (see paragraphs 14 - 18, 48, 62- 63, 165, 191-193, 212 and 213) the domestic courts essentially reasoned as follows. The courts established that the trading companies had been sham and had been entirely controlled by the applicant company and accordingly reclassified the transactions conducted by the sham entities as transactions conducted in reality by the applicant company. 596. The courts first decided that the transactions of the sham entities failed to meet the requirements of Article 39 of the Tax Code defining the notion of a sales operation (see paragraphs 48 and 324) as well as Article 209 of the Civil Code describing essential characteristics of an owner of goods (see paragraph 48 and 381). In view of the above and relying on Article 10 (3) of the Civil Code which established a refutable presumption of good faith and reasonableness of actions of the parties in commercial transactions (see paragraph 48 and 382-383), the courts then changed the characterisation of the sales operations of the sham entities. They decided that these were in reality conducted by the applicant company and that it had been incumbent on the latter to fulfil the corresponding obligation to pay various taxes on these activities. Finally, the courts noted that the setting up and running of the sham arrangement by the applicant company resulted in an understating of the taxable base of its operations and, as a consequence, the intentional non-payment of various taxes, which was punishable as a tax offence under Article 122 of the Tax Code (see paragraph 400). 597. Having regard to the applicable domestic law, the Court finds that, contrary to the applicant company’s assertions, it is clear that under the then rules contractual arrangements made by the parties in commercial transactions were only valid in so far as the parties were acting in good faith and that the tax authorities had broad powers in verifying the character of the parties’ conduct and contesting the legal characterisation of such arrangements before the courts. This was made clear not only by Article 10 (3) of the Civil Code relied on by the domestic courts in the Tax Assessment proceedings, but also by other relevant and applicable statutory provisions which were available to the applicant company and other taxpayers at the time. Thus, Article 45 (2) 3 of the Tax Code explicitly provided the domestic courts with the power to change the legal characterisation of transactions and also the legal characterisation of the status and activity of the taxpayer, whilst section 7 of the Law on the Tax Authorities of the Russian Federation granted the right to contest such transactions to the tax authorities (see paragraph 393). In addition, the case-law referred to by the Government indicated that the power to re-characterise or to cancel bad faith activities of companies existed and had been used by the domestic courts in diverse contexts and with varying consequences for the parties concerned since as early as 1997 (see paragraphs 382-393 and paragraphs 428-468). Moreover, in a number of its rulings, including decision of 25 July 2001 no. 138-0 specifically relied upon by the domestic courts in the Tax Assessment proceedings against the applicant company (see paragraphs 384-387), the Constitutional Court confirmed the significance of this principle, having mentioned various possible consequences of a taxpayer’s bad faith conduct. 598. In so far as the applicant company complained that the bad faith doctrine had been too vague, the Court would again reiterate that in any system of law, including criminal law, there is an inevitable element of judicial interpretation and there will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. In order to avoid excessive rigidity, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, among other authorities, Sunday Times, cited above, § 49 and Kokkinakis, cited above, § 40). On the facts, it would be impossible to expect from a statutory provision to describe in detail all possible ways in which a given taxpayer could abuse a legal system and defraud the tax authorities. At the same time, the applicable legal norms made it quite clear that, if uncovered, a taxpayer faced the risk of tax reassessment of its actual economic activity in the light of the relevant findings of the competent authorities. And this is precisely what happened to the applicant company in the case at hand. 599. Overall, having regard to the margin of appreciation enjoyed by the State in this sphere and the fact that the applicant company was a large business holding which at the relevant time could have been expected to have recourse to professional auditors and consultants (see Špaček, s.r.o., cited above, § 59), the Court finds that there existed a sufficiently clear legal basis for finding the applicant company liable in the Tax Assessments 2000-2003. 600. Lastly, the Court observes that the applicant company made a number of additional arguments under this head. In particular, it also alleged that there was no basis in law to deny the repayment of VAT in respect of the export of oil and oil products, that the domestic courts had failed to apply Articles 20 and 40 of the Tax Code, that it should have been dispensed from payment of interest surcharges under Article 75 (3) of the Tax Code and that in respect of the year 2000 the company had been subjected to double taxation in respect of the profits of the sham entities. 601. The Court notes that both Section 5 of Law no. 1992-1 of 6 December 1991 “On Value-Added Tax” governing the relevant sphere until 1 January 2001 as well as Article 165 of the Tax Code applicable to the subsequent period provided unequivocally that a zero rate of value-added tax in respect of exported goods and its refund could by no means be applied automatically, and that the company was required to claim the tax exemptions or refunds under its own name under the procedure set out initially in Letter no. B3-8-05/848, 04-03-08 of the State Tax Service of Russia and the Ministry of Finance and subsequently in Article 176 of the Tax Code to substantiate the requests in order to obtain the impugned refunds (see paragraphs 326-336). In view of the above, the Court finds that the relevant rules made the procedure for VAT refunds sufficiently clear and accessible for the applicant company to able to comply with it. 602. Having examined the case file materials and the parties’ submissions, including the company’s allegation made at the hearing on 4 March 2010 that it had filed the VAT exemption forms for each of the years 2000 to 2003 on 31 August 2004, the Court finds that the applicant company failed to submit any proof that it had made a properly substantiated filing in accordance with the established procedure, and not simply raised it as one of the arguments in the Tax Assessment proceedings, and that it had then contested any refusal by the tax authorities before the competent domestic courts (see paragraphs 49 and 171, 196, 196 and 216 ). The Court concludes that the applicant company did not receive any adverse treatment in this respect. 603. As regards the company’s argument that Articles 20 and 40 of the Tax Code should have been applied by the domestic courts in their case and that the Ministry’s claims were inconsistent with the above provisions, the Court notes that the Ministry and the domestic courts never relied on these provisions and there is nothing in the applicable domestic law to suggest that they had been under a legal obligation to apply these provisions to the applicant company’s case. Thus, it cannot be said that the authorities’ failure to rely on these provisions rendered the Tax Assessments 2000-2001 unlawful. 604. Finally and in so far as the company disagreed with the interpretation of Article 75 (3) of the Tax Code by the domestic courts and also alleged to have been subjected to double taxation, the Court would again reiterate that it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them, establish the facts and to interpret the domestic law. On the facts, the former provision only applied to cases where the taxpayer was unable to pay the tax debt solely due to the seizure of its assets and cash funds (see paragraph 402 ). The domestic courts established that the company had been unable to pay because of the lack of funds and not because of the injunctions and refused to apply Article 75 (3) of the Tax Code in the applicant’s case (see paragraph 216). The Court does not find this conclusion arbitrary or unreasonable. Likewise, the Court finds nothing in the parties’ submissions or the case file materials to cast doubt on the findings of the domestic courts, which specifically established that the Ministry took account of the sham entities’ profits in calculating their claims so as to avoid double taxation (see paragraph 49 ). 605. Overall, the Court finds that, in so far as the applicant company’s argument about the allegedly unreasonable and unforeseeable interpretation of the domestic law in the Tax Assessments 2000-2003 is concerned, the Tax Assessments 2000-2003 complied with the requirement of lawfulness of Article 1 of Protocol No. 1. (b) Whether the Tax Assessments 2000-2003 pursued a legitimate aim and were proportionate 606. The Court is satisfied that, subject to its findings in respect of the lawfulness of fines for the years 2000 and 2001 made earlier, each of the Tax Assessments 2000-2003 pursued a legitimate aim of securing the payment of taxes and constituted a proportionate measure in pursuance of this aim. The tax rates as such were not particularly high and given the gravity of the applicant company’s actions there is nothing in the case file to suggest that the rates of the fines or interest payments can be viewed as having imposed an individual and disproportionate burden, as such, on the applicant company (see Dukmedjian v. France, no. 60495/00, §§ 55-59, 31 January 2006). (c) Conclusion concerning the compliance with Article 1 of Protocol No. 1 as regards the Tax Assessments 2000-2003 607. Overall, the Court finds that there has been a violation of Article 1 of Protocol No. 1 on account of the 2000-2001 Tax Assessments in the part relating to the imposition and calculation of penalties. Furthermore, the Court finds that there has been no violation of Article 1 of Protocol No. 1 as regards the rest of the 2000-2003 Tax Assessments. 2. Compliance with Article 14, taken in conjunction with Article 1 of Protocol No. 1 (a) The applicant company’s submissions 608. The applicant company argued that the courts’ interpretation of the relevant laws had been selective and unique, since many other Russian companies such as Sibneft and TNK International Ltd. had also used domestic tax havens. 609. The company also submitted that the authorities had tolerated and even endorsed the tax optimisation techniques used by the applicant company in that they had accepted the applicant company’s and its trading companies’ tax returns and payments on a regular basis, and the company’s rate of tax payment had been comparable to or even higher than that of its competitors. In this connection, the applicant company relied on statistical data contained in a report by the Centre for Development, a report of the Financial Research Institute and reports of the Accounts Chamber of Russia. The company also under this heading argued that the legislative framework had permitted the company to use such techniques and that the interpretation of the domestic law in its case had been unique, selective and unforeseeable. (b) The Government’s submissions 610. The Government responded that the allegations that other taxpayers may have used similar schemes could not be interpreted as justifying the applicant company’s failure to abide by the law. They further contended that the occurrence of illegal tax schemes at a certain stage of Russia’s historical development was not due to failures or drawbacks in the legislation, but rather due to “bad-faith” actions by economic actors and weakened governmental control over compliance with the Russian tax legislation on account of objective criteria, such as the 1998 economic crisis and the difficulties of the transition period. 611. At present, the Government was constantly combating tax evasion and strengthening its control in this sphere. They also referred to statistical data by AK&M and some other news agencies in 2002, which had reported that OAO LUKOIL and OAO Surgutneftegas, two other large Russian oil producers, had posted sales proceeds of RUB 434.92 billion and RUB 163.652 billion and paid RUB 21.190 billion and RUB 13.885 billion in profit tax respectively, whilst the applicant company had posted sales proceeds of RUB 295.729 billion and paid only RUB 3.193 billion in profit tax. The Government submitted that at least two Russian oil majors, OAO Surgutneftegaz and OAO Rosneft, had never engaged in such practices, whilst some, in particular OAO Lukoil, had ceased using them in 2002. (c) The Court’s assessment 612. The Court will examine this grievance under Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. This former provision reads: Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 613. Before considering the complaints made by the applicant company, the Court would reiterate that Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised by the Convention (see, for example, Lithgow and Others, cited above, § 117). It safeguards persons (including legal persons) who are “placed in analogous situations” against discriminatory differences of treatment; and, for the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, amongst many authorities, Rasmussen v. Denmark, 28 November 1984, §§ 35 and 38, Series A no. 87). Furthermore, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law; the scope of this margin will vary according to the circumstances, the subject-matter and its background ( ibid., § 40). 614. The Court would reiterate that nothing in the case file suggests that the applicant company’s tax arrangements during the years 2000-2003, taken in their entirety, including the use of fraudulently registered trading companies, were known to the tax authorities or the domestic courts and that they had previously upheld them as lawful (see paragraphs 592-594). It thus cannot be said that the authorities passively tolerated or actively endorsed them. 615. As regards the applicant company’s allegation that other domestic taxpayers used or continue to use exactly the same or similar tax arrangements as the applicant company and that the applicant company was the only one to have been singled out, the Court finds that the applicant company failed to demonstrate that any other companies were in a relevantly similar position. The Court notes that the applicant company was found to have employed a tax arrangement of considerable complexity, involving, among other things, the fraudulent use of trading companies registered in domestic tax havens. This was not simply the use of domestic tax havens, which, depending on the exact details of an arrangement, may have been legal or may have had some other legal consequences for the companies allegedly using them. The Court notes that the applicant company had failed to submit any specific and reliable evidence concerning such details. It further notes that it cannot be called upon to speculate on the merits of the tax arrangements of third parties on the basis of data contained in non-binding research and information reports and that therefore it cannot be said that the situation of these third parties was relevantly similar to the situation of the applicant company in this respect. 616. The Court concludes that, in so far as the complaint about discriminatory treatment is concerned, there has been no violation of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. B. The complaints about the enforcement of the debt resulting from the Tax Assessments 2000-2003 617. The Court now has to determine whether the manner in which the domestic authorities enforced the debt resulting from the 2000-2003 Tax Assessment proceedings on the applicant company complied with the requirements of Article 1 of Protocol No. 1. 618. The Court reiterates that the enforcement of the debt resulting from the Tax Assessments 2000-2003 involved the seizure of the company’s assets, the imposition of a 7% enforcement fee on the overall amount of the debt and the forced sale of the applicant company’s main production unit OAO Yuganskneftegaz. These measures constituted an interference with the applicant company’s rights under Article 1 of Protocol No. 1 and it remains to be decided whether these measures met the requirement of lawfulness, pursued a legitimate aim and were proportionate to the aim pursued. 1. The applicant company’s submissions 619. The applicant company complained that the enforcement proceedings in its case had been unlawful, disproportionate and arbitrary. In particular, it argued that the authorities ought to have allowed the company to settle the debt and that it had been wrong to sell off its main production unit at auction with such speed. The company complained that the courts ought to have intervened and corrected the assessment of this matter by the bailiffs. The authorities should have first considered and accepted its offers of shares in OAO Sibneft, and/or allowed the company to make deferred payments over a prolonged period. As regards such deferred payments, the company submitted that the domestic law and practice gave priority to such a solution and that OAO Rosneft was able to obtain such a deferral in respect of the tax debts of OAO Yuganskneftegaz following the auction of 19 December 2004. The company argued that it could have repaid the debt, entirely or in part, had it not been for the attachment imposed by the court. It further criticised the authorities’ failure to act during the twenty-two months following the auctioning of OAO Yuganskneftegaz, as well as the imposition of an unlawful and disproportionate enforcement fee. 620. The applicant company contended that the seizure had been disproportionate in that the authorities had ordered the applicant company to pay and, at the same time, had frozen the company’s assets, which were worth considerably more than the company’s then liability. The authorities refused to use the company’s equity in the Sibneft company or other realistic means of settling the debt. According to the applicant company, the domestic authorities should have accepted those other realistic means of settlement (letter of 5 July 2004, letter of 9 August 2004, letter of 4 November 2004, letter of 23 March 2006) because they were required to do so by precedent in the practice of the commercial courts. The period of merely a couple of days granted to the applicant company for payment was absurdly short. 621. The applicant company was also of the view that the sale of OAO Yuganskneftegaz had been unlawful, disproportionate and had resulted in gross undervaluing by means of a clearly controlled auction with the unlawful participation of a sham bidder, OOO Baykalfinansgrup. It disagreed with the decision to sell OAO Yuganskneftegaz, arguing that under the domestic legislation OAO Yuganskneftegaz should have been the last item to be auctioned, and that the auction had been incapable of generating a reasonably good price because of the limited number of candidates, the widespread perception of the need for political support to acquire the item in question and insufficient time for preparation. The applicant company was also dissatisfied with the decision to sell only the voting shares of OAO Yuganskneftegaz, as opposed to all of the shares. The company argued that even though the authorities put no open obstacles in the path of potential buyers, there had been practical obstacles, such as the need for the buyers to comply with internal corporate procedures and to request anti-competition clearance. 622. More generally, the applicant company viewed the auction as a sham, because OAO Gazprom, OAO Rosneft (both State-owned companies with considerable involvement of State officials in their day-to-day management), the organisers of the auction and the bailiffs were acting in concert. It also relied on interviews by the then President of Russia and argued that the State banks had financed the acquisition and that the State had failed to apply anti-monopoly laws in connection with the auction. The company argued that its actions in the US bankruptcy court had had no effect on the outcome of the auction of OAO Yuganskneftegaz because neither OAO Rosneft nor OOO Baykalfinansgrup had applied for participation before the company filed for bankruptcy in the U.S. 623. The applicant company argued that the above circumstances showed that the proceedings against it, taken as a whole, were abusive in that the State clearly wanted to destroy the company and to take control of its assets. 624. As regards its alleged failure to exhaust domestic remedies, the applicant company considered that exhaustion had been unnecessary in view of the lack of prospects of success. The domestic courts consistently rejected the company’s attempts to contest the actions of the bailiffs, so other attempts would have been futile. In any event, the company had not contested the valuation report in respect of OAO Yuganskneftegaz, since it was not so materially inaccurate as to be realistically challenged in litigation. Furthermore, the company submitted that it did challenge the entire process by which the voting shares in OAO Yuganskneftegaz were sold to a state-owned company, OAO Rosneft. 2. The Government’s submissions 625. The Government submitted that the enforcement proceedings in respect of the applicant company had been lawful and proportionate. 626. It argued that the company had failed properly to exhaust domestic remedies in respect of this part of the application. In particular, its complaints about the seizure of property pending the enforcement proceedings, the alleged failure of the bailiffs to grant the company access to the case in the enforcement proceedings, the alleged inaction of the bailiffs in respect of the Sibneft’s shares, the order to pay a 7% enforcement fee and the circumstances of valuation and sale of OAO Yuganskneftegaz were inadmissible on account of a failure to exhaust domestic remedies. 627. The Government pointed out that, in the course of the enforcement proceedings, there had been no restrictions on the company’s production cycle or the sale of petroleum and mineral oils and that the applicant company had remained fully operational. In view of the State’s wide margin of appreciation in the fiscal sphere and the applicant company’s abusive conduct, illustrated by its attempts to hinder enforcement action by hiding the register of the shareholders of its three largest subsidiary companies, the Government were of the view that the fair balance between the private and public interests had been struck. 628. The Government further submitted that the procedure for compulsory recovery of arrears of mandatory tax payments had been used in respect of the applicant company, that such tax payments were recovered by way of charging the company’s cash flows on bank accounts, that in the case of insufficient or non-existent funds, the recovery of tax was carried out using the taxpayer’s assets and that the whole procedure was described in detail in the domestic legislation and had been followed by the authorities. In the circumstances, the measures represented the control of the use of property and were in full compliance with the Convention. 629. As regards the seizure of property, the Government referred to the Gasus Dosier and AGOSI cases and considered that, having regard to relevant factors, such as the enormous amount of arrears, the bad-faith conduct of the applicant company and the need for an expedient and efficient recovery of tax to the State budget, the measure in question was in compliance with the requirements of Article 1 of Protocol No. 1. The Government submitted that both the seizure and freezing orders were usual practice, both domestically and internationally, and their use was especially appropriate in the present case because of the unprecedented amounts of the tax debts, the unrepentant and defiant attitude of the applicant company, claims that the authorities’ actions were a “malicious tax racket” and the applicant company’s history, namely its management and core shareholders moving corporate assets into new shell entities and sometimes into foreign tax havens. These measures were merely precautionary in character. 630. In respect of the April injunction, the Government disagreed with the applicant company’s claim that it could have repaid the debt but for the seizure of its assets. The injunction did not cover either cash or cash revenues and the applicant company did subsequently repay a portion of its debt using the cash in the frozen account. The applicant company could have had the injunction lifted had it provided adequate counter-security, which it failed to do, or liquidated some of its foreign assets not covered by the injunction. The Government maintained that instead of selling its foreign assets to meet its tax debts the applicant company simply stripped them away, which in itself proved that the company’s complaint about the injunction was unsubstantiated. As regards the freezing orders, the Government submitted that they had been issued by the bailiffs pursuant to court writs dated 30 June 2004, which froze the company’s accounts in Russian banks as of the date of issue of the respective freezing orders. The company could still dispose of cash added to its frozen accounts after 30 June 2004 and could use its non-seized accounts abroad. The funds in these accounts had been far lower than the company’s then liabilities. The Government further noted that as of 14 July 2004 the applicant company had still to pay 96.5% of its then liability and that the company’s voluntary payment only commenced on 14 July 2004, apparently as a response to the seizure of the shares of OAO Yuganskneftegaz. The very fact that the payments had been made through the frozen accounts demonstrated that the company’s allegations about the effects of the cash freezing orders were untrue. 631. As regards the proposals for respite and payment spread, the applicant company first made such a request on 16 July 2004 by sending a letter to the Ministry of Finance. The Government pointed out that the Ministry of Finance had not been the proper authority to grant these measures as only a commercial court could and that the law set out clear rules regarding the conditions that should have been satisfied so that the request could be granted, i.e. the request should have been made one to six months before the original payment deadline and on specific grounds only, such as the risk of bankruptcy. In addition, the law did not allow for respite and payment spread if there were pending tax proceedings against the taxpayer at issue. The applicant not only failed to substantiate its request with reference to the criteria set out in law, but it was also clear that such a request was bound to fail because of the pending tax proceedings against the applicant company. 632. The Government relied on the applicable domestic law and cases to demonstrate that asking a guilty taxpayer to pay within one or two days had been standard and lawful practice followed in all cases. They claimed that this period was sufficient, as taxpayers usually learned about tax claims - with a specific indication of the sums to be paid - in the Ministry’s audit reports, which were usually served from several weeks to a few months in advance. Thus, in the present case the applicant company had first learned of the Ministry’s claims for the years 2000-2003 109, 66, 19 and 18 days in advance. More generally, in such cases the taxpayer usually knew well in advance the sums that had been underpaid (typically during tax evasion), so it cannot claim that it was unprepared. In addition, very similar practices existed internationally. 633. As to the choice of OAO Yuganskneftegaz as the first item to be auctioned in satisfaction of the company’s liabilities, the Government pointed out that the offers made by the applicant company had been unacceptable. The first three offers, made on 22 April, 2 July and 13-14 July 2004, all involved various portions of shares of OAO Sibneft, allegedly owned by the applicant company. All three offers were rejected, not only because the company’s ownership of these shares had been contested in various unrelated proceedings by third persons, but also because the offers had been made in violation of injunctions issued by the courts in the above-mentioned unrelated proceedings. In fact, the sale of shares that did belong to the applicant company (some 20%) would have been insufficient to cover the company’s then debt, even in part, let alone satisfy the Ministry’s upcoming claims for the years 2001-2003. It was a minority stake of uncertain value and any such value was in any event insufficient to satisfy the company’s tax arrears. As regards the fourth offer, dated 9 August 2004, it involved 20% of OAO Sibneft and a farrago of shares in fifteen companies (some of them subsidiaries, some of them minority stakes and all of uncertain liquidity). In any event, this offer was “too little and too late” for the Government, since preparation for the auctioning of OAO Yuganskneftegaz had been under way. The above-mentioned “shopping list” did not offer any guarantee of a “good chance of fetching a price sufficient to discharge much of [the applicant’s] rapidly increasing tax liabilities” and in addition involved a high risk of third-party claims to the property in question in each case. 634. The Government maintained that the choice of OAO Yuganskneftegaz was lawful under Russian law, aimed at securing the payment of taxes and had been effected in full compliance with the provisions of the Federal Enforcement Proceedings Act. Under section 54 (2) of the Enforcement Proceedings Act, the sale of the applicant company’s property was made by a specialised organisation pursuant to the terms of commission and the relevant legislation. On 18 November 2004 the bailiffs decided to sell 43 shares (76.8%) of OAO Yuganskneftegaz at auction. The Government noted that OAO Yuganskneftegaz was itself the debtor in mandatory payments to the budget totalling RUB 102.09 billion, so that the above arrears inevitably affected the price of the auctioned shares, as defined by the valuation institution and the results of the auction. The date of the auction and invitation to participate in the open auction were published in the mass media in due time. The auction itself was open, both with regard to its participants and to the form of submissions of price bids. Bids were received between 19 November and 18 December 2004. On 19 December 2004 the open auction took place. The winner of the auction was recognised as OOO Baykalfinancegrup, which offered RUB 260,753,447,303.18 for the shares in question. The auction itself was public. The mass media representatives provided extensive media coverage. The results were published in the mass media and broadcast. With regard to the proportionality of the sale, the sum of 260.5 billion roubles generated as a result of the sale did not, however, cover the arrears of OAO Yukos entirely. The Government also underlined that the subsequent bankruptcy was not caused by the sale of OAO Yuganskneftegaz, but had been initiated by a consortium of foreign banks and that the representatives of the applicant company had allegedly acknowledged that the company had been in good financial condition even despite the sale of OAO Yuganksneftegaz. In sum, the Government considered that there had been no breach of the Convention. 3. The Court’s assessment 635. The applicant company submitted a number of grievances about these proceedings. In particular, the applicant company complained that the enforcement of the tax liability had been deliberately orchestrated with a view to preventing the applicant company from repaying its debts. In this connection the company maintained that the seizure of its assets pending litigation had prevented it from repaying the debt. It was furthermore dissatisfied that it had been ordered to pay a 7% enforcement fee in respect of the entirety of its debt, that the time for voluntary compliance with the Tax Assessments 2000-2003 had been too short and that the sale of the company’s main production unit OAO Yuganskneftegaz had been unlawful, arbitrary and generally disproportionate. 636. Before turning to the substance of these complaints, the Court reiterates that in its decision on admissibility it joined to the merits the question of exhaustion of domestic remedies. Thus, the Court needs to determine whether the applicant complied with the requirement to exhaust domestic remedies in respect of this part of the application, as required by Article 35 § 1 of the Convention, which, in its relevant parts, provides: “1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...” 637. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see, for example, Aksoy, 18 December 1996, §§ 51-52, Reports 1996–VI; Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996 ‑ IV; and, more recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006). 638. The Court has emphasised that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the particular circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others, cited above, § 69; Aksoy, cited above, §§ 53-54; and Tanrıkulu v. Turkey [GC], no. 23763/94, § 82, ECHR 1999 ‑ IV). 639. The Court reiterates that at the admissibility stage of the proceedings the Government claimed that the applicant company had failed to exhaust domestic remedies in respect of the attachment and seizure of its assets pending the enforcement proceedings, the alleged failure by the bailiffs to grant the company access to the case in the enforcement proceedings, the bailiffs’ alleged inaction in respect of the Sibneft shares, the orders to pay a 7% enforcement fee and the circumstances of the valuation and sale of OAO Yuganskneftegaz. 640. Having examined the case file and the parties’ submissions, the Court finds that in the part concerning the attachment and seizure of the assets the applicant company properly exhausted the available domestic remedies by raising its grievances before the competent domestic courts. The attachment order of 15 April 2004 was reviewed and upheld by the Appeal Court on 2 July 2004 (see paragraph 92 ) and was also examined and confirmed by the City Court in its decision of 23 April 2004 in the context of the examination of the company’s request of 22 April 2004 (see paragraphs 96 - 97 ), and by the City Court and the Appeal Court on 23 April and 2 July 2004 respectively in the context of examination of the company’s request for an injunction against the attachment (see paragraphs 101 and 102 ). The seizure order of 1 July 2004 was reviewed at first instance on 17 September 2004 and in cassation on 2 February 2005 (see paragraphs 116 - 120 ). The seizure of OAO Yuganskneftegaz on 14 July 2004 was reviewed by the courts at four instances, on 6, 9 August, 25 October and 17 December 2004 respectively (see paragraphs 137 - 146 ). As regards the seizure orders of 14 July 2004 concerning OAO Tomskneft-VNK and OAO Samaraneftegaz, the City Court upheld them by respective judgments of 13 August and 2 September 2004, whilst the Circuit Court confirmed this conclusion by the respective decisions of 5 November 2004 and 18 January 2005 (see paragraphs 147 - 155 ). 641. Admittedly, the applicant company did not complain about the attachment order of 15 April 2004 by way of cassation and omitted the appeal procedure when contesting the seizure of its subsidiaries on 1 July 2004 and the seizure order of 14 July 2004 concerning OAO Tomskneft-VNK and OAO Samaraneftegaz. The Court would note, however, that given the circumstances of the applicant company’s tax case, its overall situation at the relevant time, the applicable domestic law and the courts’ responses to the arguments put forward by the applicant company in those proceedings, it is clear that both the attachment order of 15 April 2004 and the subsequent seizure orders of 1 and 14 July 2004 have been properly examined and confirmed by the domestic courts at various levels of jurisdictions and it does not appear that the applicant company’s complaints in this connection had any additional prospects of success, had the company not omitted the above-mentioned judicial instances. 642. As regards the complaints about a 7% enforcement fee, the Court observes that the applicant company was ordered to pay this fee for the years 2000-2003. The company’s challenge to this fee was examined and dismissed by the courts at three instances only in respect of the year 2000 (see paragraphs 130 - 134 ), whilst its complaints about the payment of the fee for the year 2001 were examined only at first instance and in cassation (see paragraphs 177 - 187 ). Also, it is not entirely clear whether the applicant company brought court proceedings in respect of the entire amount of the fee for the year 2002 (see paragraphs 200 - 204 ) and whether it brought any proceedings against such an order for the year 2003 (see paragraph 221 ). The Court again finds that, given the similarity of the orders for payment of enforcement fees for the years 2000-2003 and in view of other relevant circumstances such as the applicable domestic law and the courts’ answers to the company’s arguments in respect of the fee for the year 2000, there is nothing in the Government’s submissions to suggest that the applicant company’s complaints in this connection would have had any prospects of success had the applicant company appealed against them. 643. As regards the alleged failure by the bailiffs to grant the company access to the case in the enforcement proceedings and the bailiffs’ alleged inaction in respect of the Sibneft shares, the Court notes that the above-mentioned grievances are entirely subsumed by the complaint concerning the method of enforcement of the tax debt and in particular the choice of OAO Yuganskneftegaz as the first asset to be sold in satisfaction of the tax claims. In this connection, the Court would note that the applicant company clearly exhausted the available domestic remedies as regards the seizure and the subsequent measures leading to the eventual sale of OAO Yuganskneftegaz (see paragraphs 137 - 146 ), and it is also clear that the relevant domestic law specifically disallowed the courts to rearrange or otherwise postpone the repayment of the debt (see paragraphs 471-477) if there were, as in the case at hand, pending tax proceedings against the debtor. Thus, the applicant company could not have been expected to bring separate court proceedings in this connection. Overall, it is clear to the Court that the applicant company used all the remedies that it could reasonably be expected to use in connection with this part of the application. 644. Thus, the Court finds that the applicant company has complied with the requirement to exhaust domestic remedies in respect of this part of the application and dismisses the Government’s preliminary objection accordingly. 645. Turning to the substance of the applicant company’s complaints, the Court notes that in April 2004, simultaneously with the Tax Assessment proceedings, the domestic authorities initiated enforcement proceedings aimed at securing their tax claims and later recovering the sums awarded by the courts as a result of the examination of these claims. They attached the company’s assets located in Russia and later partly froze the company’s domestic bank accounts and seized the shares of the applicant company’s Russian subsidiaries. On 20 July 2004 it was decided to auction off the company’s principal production subsidiary OAO Yuganskneftegaz, in satisfaction of the company’s tax liability, which at the time amounted to RUB 106.182 billion (some EUR 3.005 billion). As a result of the proceedings with regard to the Tax Assessments 2001 and 2002, the company’s debt to the tax authorities further increased and by the time the auction of OAO Yuganskneftegaz took place in December 2004 the company already owed the tax authorities some RUB 431.259 billion (some EUR 11.061 billion). In addition to the payments resulting from the Tax Assessments 2000-2003, the company was also required to pay the bailiffs a 7% enforcement fee on the overall amount of the debt. 646. The Court notes that the authorities used a variety of measures in connection with the enforcement of the debt, such as the attachment and freezing orders, the seizure orders, the orders to pay enforcement fees and the compulsory auction procedure. Though each of these measures could be seen as a separate instance of interference with the applicant company’s rights under Article 1 of Protocol No. 1, their common and ultimate goal was to force the company to meet its tax liabilities. Accordingly, the appropriate way to analyse this part of the application is to examine the enforcement proceedings in their entirety as one continuous event. The Court further notes that the enforcement measures in question fall to be analysed under the third rule of Article 1 of Protocol No. 1, which allows the member States to control the use of property in accordance with the general interest, by enforcing “such laws as [they] deem necessary to secure the payment of taxes or other contributions or penalties”. It follows that the Court’s task is to determine whether the State authorities complied with the Convention requirement of lawfulness and, if so, whether they struck a fair balance between the legitimate state interest in enforcing the tax debt in question and the protection of the applicant company’s rights set forth in Article 1 of Protocol No. 1. 647. As regards the lawfulness of the measures in question, the Court has no reason to doubt that throughout the proceedings the actions of various authorities had a lawful basis and that the legal provisions in question were sufficiently precise and clear to meet the Convention standards concerning the quality of law. The attachment, freezing and seizure orders were reviewed by the domestic courts and found to have been lawful. Likewise, the 7% enforcement fee was upheld by the domestic courts and cannot be said to have been selective, given the domestic case-law cited by the Government. As regards the decisions leading to the forced sale of OAO Yuganskneftegaz at auction and the auction process itself, the Court notes that they too were reviewed and upheld by the domestic courts as lawful (see paragraphs 263 and 265) and there is nothing in the case file or the parties’ submissions to cast doubt on these conclusions. The only question that remains is whether the enforcement measures were proportionate to the legitimate aim pursued. 648. In this connection the Court would reiterate that its task is to determine whether a fair balance was struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights. It finds it natural that in the tax sphere the Contracting States should enjoy a wide margin of appreciation in order to implement their policies. Nevertheless, the Court cannot fail to exercise its power of review and must determine whether the requisite balance was maintained in a manner consonant with the applicant company’s right to “the peaceful enjoyment of [its] possessions”, within the meaning of the first sentence of Article 1 of Protocol No. 1. 649. At the outset the Court notes the background to this case and, in particular, the fact that the applicant company was one of the largest taxpayers in Russia and that it had been suspected and subsequently found guilty of running a tax evasion scheme, committed consecutively in 2000-2003. From the parties’ submissions and the case file it seems clear that the applicant company had no cash funds in its domestic accounts to pay its tax debts immediately, and in view of the nature and scale of the debt it was unlikely that any third party would agree to assist the company with a loan or some form of security. Regard being had to the scale of the tax evasion, the sums involved for the years 2000-2003, the fact under domestic law that they were payable almost at once after the production of the respective execution writ (see paragraph 471), and even taking into account the Court’s previous findings in respect of the fines for the years 2000 and 2001, it was questionable whether at the time when the authorities decided to seize and auction OAO Yuganskneftegaz the company was at all solvent within the meaning of section 3 of the Insolvency (Bankruptcy) Act, which generally expected the solvent debtor to repay its debts “within three months of the date on which compliance should have occurred” (see paragraph 496). 650. In view of the above considerations, the Court finds that the crux of the applicant company’s case did not lay in the attachment of its assets and cash as such, but rather and essentially in the speed with which the authorities demanded the company to pay, in the decision which had chosen the company’s main production unit, OAO Yuganskneftegaz, as the item to be compulsorily auctioned in the first instance, and in the speed with which the auction had been carried out. 651. Given the paramount importance of the measures taken by the authorities to the applicant company’s future, and notwithstanding the Government’s wide margin of appreciation in this field, the Court is of the view that the authorities were obliged to take careful and explicit account of all relevant factors in the enforcement process. Such factors were to include, among other things, the character and the amount of the existing debt as well as of the pending and probable claims against the applicant company, the nature of the company’s business and the relative weight of the company in the domestic economy, the company’s current and probable economic situation and the assessment of its capacity to survive the enforcement proceedings. Furthermore, the economic and social implications of various enforcement options on the company and the various categories of stakeholders, the attitude of the company’s management and owners and the actual conduct of the applicant company during the enforcement proceedings, including the merits of the offers that the applicant company may have made in connection with the enforcement were to be properly considered. 652. The Court notes that the authorities examined and made findings in respect of some of these factors (see, for instance, the findings in respect of the offers of shares in OAO Sibneft in paragraph 124 or the findings in respect of request for payment spread in paragraph 157 ), but it is clear that at no point in the enforcement proceedings did they make an explicit assessment in respect of all of them. In particular, neither the seizure order of 14 July 2004, which set in motion the process of auctioning OAO Yuganskneftegaz (see paragraph 137 ), nor any of the subsequent decisions, including the judicial decisions in the context of the company’s complaints against the actions of the bailiffs (see paragraphs 137 - 158 ), mentioned or discussed in any detail possible alternative methods of enforcement and the consequences that they might have on the future of the company. 653. The Court finds this aspect of the enforcement proceedings of utmost importance when striking a balance between the interests concerned, given that the sums that were already owed by the company in July 2004 made it rather obvious that the choice of OAO Yuganskneftegaz as the first item to be auctioned in satisfaction of the company’s liability was capable of dealing a fatal blow to its ability to survive the tax claims and to continue its existence. 654. The Court accepts that the bailiffs were bound to follow the applicable domestic legislation which might limit the variety of options in the enforcement procedure. Nonetheless, the Court is of the view that, notwithstanding these constraints, the bailiffs still had a decisive freedom of choice, the exercise of which could either keep the company afloat or eventually lead to its demise. Although the Court, in principle, does not find the choice of OAO Yuganskneftegaz entirely unreasonable, especially in view of the overall amount of the tax-related debt and the pending as well as probable claims against the company, it is of the view that before definitively selecting for sale the asset that was the company’s only hope of survival, the authorities should have given very serious consideration to other options, especially those that could mitigate the damage to the applicant company’s structure. This was particularly so since all of the company’s domestic assets had been attached by previous court orders (see paragraph 27 ), and were readily available, the company itself did not seem to have objected to their sale (see paragraph 159) and there had been virtually no risk of the company seriously opposing these actions. 655. The Court further notes one other factor which seriously affected the company’s situation in the enforcement proceedings. The applicant company was subjected to a 7% enforcement fee in connection with the entire amount of its tax-related liability, which constituted an additional hefty sum of over RUB 43 billion (EUR 1.16 billion), the payment of which could not be suspended or rescheduled (see paragraphs 484-486). This was a flat-rate fee which the authorities apparently refused to reduce, and these sums had to be paid even before the company could begin repaying the main body of the debt (see paragraph 484). The fee was by its nature unrelated to the actual amount of the enforcement expenses borne by the bailiffs. Whilst the Court may accept that there is nothing wrong as a matter of principle with requiring a debtor to pay for the expenses relating to the enforcement of a debt or to threaten a debtor with a sanction to incite his or her voluntary compliance with enforcement writs, in the circumstances of the case the resulting sum was completely out of proportion to the amount of the enforcement expenses which could have possibly been expected to be borne or had actually been borne by the bailiffs. Because of its rigid application, instead of inciting voluntary compliance, it contributed very seriously to the applicant company’s demise. 656. Lastly, the Court would again emphasise that the authorities were unyieldingly inflexible as to the pace of the enforcement proceedings, acting very swiftly and constantly refusing to concede to the applicant company’s demands for additional time. Admittedly, this rigidity may have resulted at least in part from the relevant requirements of the domestic law (see paragraphs 471, 481 and 489). Nevertheless, the Court finds that in the circumstances of the case such lack of flexibility had a negative overall effect on the conduct of the enforcement proceedings against the applicant company. 657. On the whole, given the pace of the enforcement proceedings, the obligation to pay the full enforcement fee and the authorities’ failure to take proper account of the consequences of their actions, the Court finds that the domestic authorities failed to strike a fair balance between the legitimate aims sought and the measures employed. 658. To sum up, the Court concludes that there has been a violation of the applicant company’s rights under Article 1 of Protocol No. 1 on account of the State’s failure to strike a fair balance between the aims sought and the measures employed in the enforcement proceedings against the applicant company. C. The complaint about the Government’s intentions in the tax and enforcement proceedings against the applicant company 659. The Court notes that, in addition to various specific grievances about the tax and enforcement proceedings already mentioned above, the applicant company also argued that the overall effect of these proceedings showed that the Government had brought and conducted the proceedings with the intent to destroy the company and to take control of its assets. 660. The Court will examine this part of the application under Article 18 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. Article 18 of the Convention “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 1. The applicant company’s submissions 661. The applicant company argued that the circumstances of the tax assessment and enforcement proceedings as well as the allegedly “political” motivation behind the prosecution of Mr M. Khodorkovskiy and other owners and senior officials of the applicant company showed that the proceedings against it, taken as a whole, were abusive in that the State clearly wanted to destroy the company and to take control of its assets. 2. The Government’s submissions 662. The Government disagreed, having maintained that tax assessment and subsequent enforcement proceedings had been lawful and regular and that the applicant company’s demise was the direct result of its carrying out over many years a gigantic tax fraud. 3. The Court’s assessment 663. The Court reiterates that Article 18 of the Convention does not have an autonomous role. This provision can only be applied in conjunction with the Convention provisions protecting substantive rights. It also follows from the terms of Article 18 that a violation can only arise where the right or freedom concerned is subject to restrictions permitted under the Convention (see, for example, Gusinskiy v. Russia, no. 70276/01, § 73, ECHR 2004 ‑ IV). The Court further notes that in order to hold a member State liable under this provision an applicant should be able to furnish the Court with an incontrovertible and direct proof in support of his or her allegations. 664. The Court would observe that in its previous analysis under Article 6 of the Convention and Article 1 of Protocol No. 1 it has already addressed the applicant company’s points about the nature of its debt to the authorities, and in particular the merits of the 2000-2003 Tax Assessments proceedings. Despite the fact that it found a violation of Article 6 of the Convention on account of the speed with which the courts had conducted the proceedings in the 2000 Tax Assessment case and a violation of Article 1 of Protocol No. 1 on account of the interference by the Constitutional Court with the outcome of the 2000 Tax Assessment case in the part relating to penalties, the Court rejected the applicant company’s claims that the company’s debt had been recognised as a result of an unforeseeable, unlawful and arbitrary interpretation of the domestic law (see paragraphs 605 and 616). The Court also recognised the right of the State to enforce, as such, the court judgments, but reached conclusions concerning the handling of the enforcement proceedings by the domestic authorities which lead to the finding of a violation of Article 1 of Protocol No. 1. In view of these findings, the Court will proceed on the assumption that the company’s debt in the enforcement proceedings resulted from legitimate actions by the respondent Government to counter the company’s tax evasion and the burden of proof would accordingly rest on the applicant company to substantiate its allegations. 665. Regard being had to the case file and the parties’ submissions, including the applicant company’s references to the allegedly political motivation behind the prosecution of the applicant company and its owners and officials, the Court finds that it is true that the case attracted massive public attention and that comments of different sorts were made by various bodies and individuals in this connection. The fact remains, however, that those statements were made within their respective context and that as such they are of little evidentiary value for the purposes of Article 18 of the Convention. Apart from the findings already made earlier, the Court finds no indication of any further issues or defects in the proceedings against the applicant company which would enable it conclude that there has been a breach of Article 18 of the Convention on account of the applicant company’s claim that the State had misused those proceedings with a view to destroying the company and taking control of its assets. 666. To sum up, the Court finds that there has been no violation of Article 18 of the Convention, taken in conjunction with Article 1 of Protocol No. 1, on account of the alleged disguised expropriation of the company’s property and the alleged intentional destruction of the company itself. D. Alleged violations of Articles 7 and 13 of the Convention 667. Regard being had to the particular circumstances of the present case and to the reasoning which led it to find a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the Court finds that there is no cause for a separate examination of the same facts from the standpoint of Article 7 of the Convention and through the prism of the “effective remedies” requirement of Article 13. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 668. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 669. The applicant company claimed a lump sum of over 81 billion euros and a daily interest payment of EUR 29,577,848 in respect of pecuniary damage, “no less than 100,000 euros” in respect of non-pecuniary damage and EUR 171,444.60 in respect of costs and expenses. 670. The Government disagreed, having contested both the authority of Mr Gardner to make the Article 41 claims on behalf of the applicant company as well as the well-foundedness of the calculations in question. 671. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the applicant company and the respondent Government (Rule 75 § 1 of the Rules of Court). | The Court held that there had been a violation of Article 1 (protection of property) of Protocol No. 1 regarding the imposition and calculation of the penalties concerning the 2000-2001 tax assessments for two reasons, the retroactive change in the rules on the applicable statutory time-limit and the consequent doubling of the penalties due for the 2001 tax year. However, observing that the rest of the 2000-2003 tax assessments were lawful, pursued a legitimate aim (securing the payment of taxes) and were a proportionate measure, it found no violation of Article 1 of Protocol No. 1 regarding the rest of the 2000-2003 tax assessments. As regards enforcement proceedings, given the pace of the enforcement proceedings, the obligation to pay the full enforcement fee and the authorities’ failure to take proper account of the consequences of their actions, the Court found that the Russian authorities had failed to strike a fair balance between the legitimate aims sought and the measures employed, in violation of Article 1 of Protocol No. 1. In this case the Court also found violations of Article 6 §§ 1 and 3 (b) (right to a fair trial) of the Convention in respect of the 2000 tax-assessment proceedings on the grounds that the applicant had not had sufficient time to study the case file at first instance (four days for at least 43,000 pages) or to make submissions and, more generally, to prepare the appeal hearings. It further held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 1 of Protocol No. 1 as, in view of the considerable complexity of the tax arrangements it had put in place, the applicant was not in a relevantly similar position to any other company. Lastly, the Court found that there had been no violation of Article 18 (limitation on use of restrictions on rights) of the Convention in conjunction with Article 1 of Protocol No. 1, as the applicant had failed to substantiate its claims that the authorities’ aim had not been to take legitimate action to counter tax evasion, but to destroy it and take control of its assets. In its judgment on just satisfaction of 31 July 2014, the Court further decided: that Russia was to pay the shareholders of the applicant company as they had stood at the time of the company’s liquidation and, if applicable, their legal successors and heirs 1,866,104,634 euros in respect of pecuniary damage, and that Russia had to produce, in co-operation with the Council of Europe’s Committee of Ministers, a comprehensive plan for distribution of the award of just satisfaction; that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. |
445 | Medical assistance for prisoners with a physical illness | II. RELEVANT DOMESTIC LAW A. CPP 34. The relevant parts of Articles 453 and 455 CPP provide : Article 453 “ 1. Enforcement of a sentence to life imprisonment or detention may be suspended in the following cases : a) where it is noted, on the basis of a medical expert assessment, that the convicted prisoner is suffering from an illness making it impossible for him to serve his sentence. In such cases, sentence enforcement must be suspended until the prisoner is in a position to resume it; ... 2. A request for suspension of enforcement of a sentence to life imprisonment or detention may be submitted by the public prosecutor [or ] by the prisoner in question .... ” Article 455 “Enforcement of a sentence to life imprisonment or detention may be interrupted in the cases and under the conditions set out in Article 453 .... ” B. Law no. 275 of 20 July 2006 on the enforcement of prison sentences and detention orders 35. The relevant domestic provisions on the remedy available to prisoners to defend their rights, including the right to medical treatment, as governed by Law no. 275, which came into force on 20 October 2006 and concerns the enforcement of prison sentences and detention orders issued by the judicial authorities in the context of criminal proceedings (“Law no. 275/2006”), are described in the case of Iacov Stanciu v. Romania (no. 35972/05, §§ 115 and 116, 24 July 2012). Those provisions allow those concerned to contact the sentence enforcement judge delegated to the prison ( “the delegated judge” ) directly in order to complain of a lack of appropriate medical treatment and ensure that the prison authorities provide them with such treatment. The delegated judge ’ s decision may be challenged before the court of first instance of the district in which the prison is located. 36. Article 159 § 3 of the implementing regulations of Law no. 275/2006 provides that : “Metal handcuffs may not be used to constrain persons deprived of their liberty [who are receiving treatment] in a medical facility. The method and mode of utilisation of devices for constraining persons in medical facilities shall be established by decision of the Director General of the National Prison Administration.” THE LAW I. PRELIMINARY QUESTION 37. The Court notes that the applicant died on 24 December 2013 and that the deceased ’ s son, Mr Mircea Dorneanu, expressed the wish to continue the proceedings before it ( see paragraph 3 above ). 38. The Court normally permits next-of-kin to pursue an application, provided he or she has sufficient interest, if the original applicant has died after the introduction of the application before the Court ( see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII; Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, § 172, 25 November 2014; and Paposhvili v. Belgium [GC], no. 41738/10, § 126, ECHR 2016). Having regard to the subject matter of the application and all the elements in its possession, the Court considers that the applicant ’ s son has a legitimate interest in pursuing the application and that he thus has the requisite locus standi under Article 34 of the Convention ( see, for example, Carrella v. Italy, no. 33955/07, §§ 48-51, 9 September 2014, and Murray v. the Netherlands [GC], no. 10511/10, § 79, ECHR 2016). 39. For practical reasons, the present judgment will continue to refer to the late Mr Florin Liviu Dorneanu as “the applicant ”. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 40. The applicant complained that the authorities had failed to provide him with the medical care necessitated by his state of health, thus endangering his life. He relied on Article 2 of the Convention, the relevant parts of which provide: Article 2 “Everyone ’ s right to life shall be protected by law.” A. The parties ’ submissions 41. The Government objected that the applicant had failed to bring an action under Law no. 275/2006 to complain of the authorities ’ failures in this regard. They added that the applicant ’ s relatives could have brought criminal or civil proceedings in order to establish whether the prison authorities had been responsible for the applicant ’ s worsening state of health and his death. 42. In any event, the Government considered that there was nothing in the applicant ’ s medical file to suggest that the deterioration in his state of health during his imprisonment had been attributable to the domestic authorities. While acknowledging a number of shortcomings in the administration of treatment, they stated that the problems had been minimal and had neither endangered the applicant ’ s life nor affected his life expectancy. 43. The Government concluded that the requirements set out by the Court as regards treatment for prisoners with health problems had been observed, and that the applicant ’ s state of health had therefore been appropriately monitored and dealt with by qualified medical staff. 44. The applicant ’ s son submitted that his father had been so physically diminished that he had been unable to draw up a complaint to the delegated judge under Law no. 275/2006. He argued that in his submissions to the domestic authorities his father had provided sufficient evidence for those authorities to initiate an investigation into the shortcomings in the provision of medical treatment. B. The Court ’ s assessment 45. The Court reiterates that it has previously held, in connection with alleged failures to provide prisoners with appropriate medical assistance, that a complaint based on the provisions of Law no. 275/2006 was an effective remedy for the purposes of Article 35 § 1 of the Convention (see, among many other authorities, Szemkovics v. Romania (dec.), no. 27117/08, §§ 25 and 26, 17 December 2013, and Matei v. Romania (dec.), no. 26244/10, §§ 36 and 37, 20 May 2014). 46. The Court notes that the applicant lodged with the national courts a request to interrupt the enforcement of his sentence for medical reasons and made several submissions for the same purpose ( see paragraphs 11, 24 and 26 above ). However, those submissions had not directly concerned the lack of medical treatment, but rather the incompatibility of the applicant ’ s state of health with his detention ( see, mutatis mutandis, Matei, decision cited above, § 38, and Şopârlă v. Romania (dec.), no. 76884/12, §§ 47 and 48, 2 February 2016). 47. Nevertheless, in the circumstances of the present case, the Court considers it unnecessary to ascertain whether the actions indicated by the Government ( see paragraph 41 above ) amounted to effective remedies or whether, by exclusively requesting an interruption of his sentence enforcement, the applicant had duly exhausted available domestic remedies in respect of his complaint under Article 2 of the Convention. Even supposing that that was so, the applicant ’ s case does not appear to have comprised any breach of that provision, for the following reasons. 48. The Court reiterates that the obligation to protect the lives of prisoners entails providing them with proper medical care such as to prevent any fatal outcome ( see Taïs v. France, no. 39922/03, § 98, 1 June 2006, and Angelova v. Bulgaria, no. 38361/97, §§ 125-130, ECHR 2002-IV). The obligation to provide appropriate medical care is not confined to prescribing adequate treatment : the prison authorities must also ensure that such treatment is properly administered and followed up ( see Jasińska v. Poland, no. 28326/05, § 78, 1 June 2010). 49. The Court notes that the applicant was mainly provided with medical assistance in the cancer ward of the Bacau hospital. He was admitted to that ward eighteen times, including several fairly long stays, and benefited from fifteen or so chemotherapy sessions ( see paragraph 29 above ). On a recommendation from the hospital cancer department, the applicant underwent additional examinations and radiotherapy and chemotherapy in the Bucharest and Iași Institutes of Oncology ( see paragraphs 31 and 32 above ). 50. The Court observes that the report drawn up by the senior medical officer of the Bacău hospital oncology department ( see paragraph 30 above ) mentions three instances of shortcomings in the administration of the prescribed treatment. 51. However, the Court notes that none of the medical documents available to it establishes that those shortcomings, however regrettable they may have been, were such as to jeopardise the effectiveness of the treatment and / or the implementation of the protocol for its administration. For the rest, the other chemotherapy and radiotherapy sessions had taken place as scheduled ( see paragraphs 31 and 32 above ). 52. The Court also attaches importance to the fact that the applicant was affected not by the sequelae of any disease contracted during his time in prison, but by the metastases of his cancer which had predated his imprisonment ( see, mutatis mutandis, Gengoux v. Belgium, no. 76512/11, § 56, 13 December 2016). 53. Having regard to the number of hospital stays and the complexity of the treatment administered to the applicant, the Court does not consider that that it has been established that the domestic authorities are responsible for the applicant ’ s death or that they failed in their positive obligation to protect his health in a manner appropriate to the circumstances. 54. It follows that this complaint is manifestly ill- founded and must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 55. The applicant complained that his immobilisation in a hospital bed had amounted to inhuman treatment and that his state of health had been incompatible with detention. He relied, in that regard, on Article 3 of the Convention, which provides: “ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ” 56. The Court considers that the compliance of two different situations with Article 3 of the Convention, namely the applicant ’ s immobilisation in hospital, and the compatibility of his state of health with detention, should be assessed separately. A. The applicant ’ s immobilisation in hospital 57. The Government submitted that that complaint was inadmissible on the grounds of non ‑ exhaustion of domestic remedies. They argued that the applicant had at no stage complained to the judge delegated to Bacău Prison about this measure, which breached the provisions of Law no. 275/2006. 58. The applicant ’ s son submitted that his father had drawn the authorities ’ attention to his living conditions in the Bacău hospital, where he had been immobilised in bed with handcuffs. 59. The Court reiterates that the only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness ( see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV, and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010). It also reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies ( Akdivar and Others, cited above, § 71, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX). 60. The Court observes that at the material time the use of handcuffs to immobilise prisoners in hospital was formally forbidden by the implementing regulations of Law no. 275/2006 ( see paragraph 36 above; see also, to converse effect, Tănase v. Romania, no. 5269/02, § 84, 12 May 2009, and Stoleriu v. Romania, no. 5002/05, §§ 80 and 81, 16 July 2013). 61. In the present case, the Court notes that neither the applicant nor his relatives, who could have acted on his behalf on account of his state of physical and psychological vulnerability, availed themselves of the remedy set out in Law no. 275/2006. It considers that a complaint to the judge delegated to the prison could well have led to a finding against the prison authorities for a breach of the legal provisions concerning the use of handcuffs. 62. It follows that this complaint must be rejected for non ‑ exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. B. Whether the applicant ’ s state of health was compatible with detention 1. Admissibility ( a) The parties ’ submissions 63. The Government considered that, as in the case of Ceku v. Germany ((dec.), no. 41559/06, 13 March 2007), the complaint concerning the applicant ’ s continued detention despite his worsening state of health should be declared inadmissible for non- exhaustion of domestic remedies on the grounds that the applicant had failed to submit a further request for the interruption of his sentence. 64. The applicant ’ s son pointed out that in view of the rapid deterioration in his father ’ s state of health he should have been provided with constant emergency care. In view of the length of time required to examine a fresh request for interruption of sentence, which he argued would have been similar to the period required for the first request, which had taken several months to process, he considered that it would have been illusory to submit another request for interruption of sentence. ( b) The Court ’ s assessment 65. The Court notes that the applicant used the only remedy available in domestic law, namely a request for interruption of sentence on health grounds ( see paragraph 11 above ). In the framework of that remedy he had mentioned the incompatibility which he saw between his illness and the constraints of imprisonment, thus giving the domestic courts an opportunity to prevent or remedy the alleged violation of the Convention. 66. The Court also notes that the situation in the present case is different from that in the case of Ceku relied upon by the Government ( see paragraph 63 above ). In the latter case the applicant had failed to produce before the German Constitutional Court a number of documents on which the regional court had grounded its decision rejecting his request for the interruption of enforcement of his sentence. However, in the instant case, the fact cannot be overlooked that the applicant ’ s state of health, which was already extremely poor, had been very well-known to the court of appeal which considered the prosecution appeal ( see paragraph 17 above ). 67. Moreover, having regard to the time required to process the first request, namely from the beginning of March 2013 to the end of August 2013 ( see paragraphs 11 and 17 above ), the Court considers that it would have been excessive to require the applicant to submit a second request at a time when the likelihood of a fatal outcome had seemed increasingly imminent after the discontinuation of his chemotherapy in October 2013, replaced by palliative care ( see paragraph 20 above ). Indeed, the applicant was indubitably in an extremely vulnerable situation, and could not have been expected once again to ask the authorities to address a problem to which he had already drawn their attention. It had been incumbent on those authorities to monitor his situation, if only on humanitarian grounds ( see, mutatis mutandis, Gülay Çetin v. Turkey, no. 44084/10, § 113, 5 March 2013, and paragraphs 95 and 99 below ). 68. Having regard to the foregoing considerations, the Court holds that the applicant ’ s complaint under Article 3 of the Convention concerning the compatibility of his state of health with detention had been appropriately brought to the attention of the domestic courts. 69. Accordingly, it rejects the Government ’ s objection in respect of the complaint. 70. Furthermore, noting that this complaint is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible. 2. The merits (a) The parties ’ submissions 71. The applicant considered that he had suffered treatment contrary to Article 3 of the Convention owing to the incompatibility of his state of health with imprisonment. He alleged that his detention while suffering from life-threatening cancer had reduced his chances of survival. 72. The applicant considered that the court of appeal had decided to continue his detention without having regard to his actual conditions of detention. He described those conditions as “inhuman”, pointing out that his recurrent stays in hospital had entailed a large number of transfers and delays in the provision of treatment. He added that that situation had persisted until the terminal phase of the disease, and that it had placed him and his family in a situation of powerlessness and profound distress. 73. The Government did not consider that Article 3 of the Convention had been breached. They pointed out that on his arrival in prison on 4 March 2013 the applicant had already been suffering from a disease which would have fatal outcome in the short term owing to the metastases spreading to his skeleton. They further submitted that neither the Institute of Forensic Medicine nor the doctors had imposed on the authorities any obligation to place the applicant permanently in a civilian hospital ( see paragraph 14 above ). 74. The Government affirmed that the applicant had been hospitalised whenever his state of health so required. Furthermore, they stated that outside the periods in hospital, the applicant had been housed mainly in the Rahova and Târgu Ocna Prison hospitals, where he had received the appropriate treatment. (b) The Court ’ s assessment i. General principles 75. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the applicant ’ s sex, age and state of health (see, among other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 ‑ VII, and Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX). 76. As regards, in particular, persons deprived of their liberty, Article 3 of the Convention imposes on the State the positive obligation to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. The suffering which flows from natural illness, whether physical or mental, may fall foul of Article 3, where it is, or risks being, exacerbated by conditions of detention for which the authorities can be held responsible. The prisoner ’ s health and well-being must be adequately secured by, among other things, providing him with the requisite medical assistance. Thus the detention of a person who is ill in inappropriate material and medical conditions may, in principle, amount to treatment contrary to Article 3 ( see Gülay Çetin, cited above, § 101, with the references therein ). 77. In order to determine whether the detention of a person who is ill complies with Article 3 of the Convention, the Court considers three different factors ( see, for example, Sakkopoulos v. Greece, no. 61828/00, § 39, 15 January 2004; Gülay Çetin, cited above, § 102; Bamouhammad v. Belgium, no. 47687/13, §§ 120-123, 17 November 2015; and Rywin v. Poland, nos. 6091/06, 4047/07 and 4070/07, § 139, 1 8 February 2016, with the references therein ). 78. The first factor is the applicant ’ s state of health and the effect on the latter of the manner of his imprisonment. Conditions of detention may under no circumstances subject a person deprived of his liberty to feelings of fear, anxiety or inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance. Thus, the detention of a person who is ill under inappropriate material and medical conditions can, in principle, amount to treatment incompatible with Article 3 of the Convention. 79. The second factor to be considered is the adequacy or inadequacy of the medical care and treatment provided in detention. It is not sufficient for the prisoner to be examined and a diagnosis to be made; it is vital that treatment suited to the diagnosis be provided, together with appropriate medical after-care. 80. The third and last factor is the decision whether or not to continue the person ’ s detention in view of his state of health. Clearly, the Convention does not lay down any “general obligation ” to release a prisoner for health reasons, even if he is suffering from a disease which is particularly difficult to treat. Nevertheless, the Court cannot rule out the possibility that in particularly serious cases, situations may arise where the proper administration of criminal justice requires remedies in the form of humanitarian measures. ii. Application of those principles in the present case 81. The Court observes, first of all, that the applicant provided no precise details concerning his material conditions of detention. However, he described those conditions as “inhuman” and complained that the authorities had constantly transferred him to various places of detention, even during the terminal phase of his illness. The Government submitted that in both the civilian and prison hospitals the applicant had enjoyed conditions of detention satisfying the requirements of Article 3 of the Convention. They argued that the transfers had taken place for medical reasons. 82. The Court notes that it transpires from the documents supplied by the prison authorities that the applicant had suffered the effects of a problem of severe overcrowding in Vaslui Prison, where his personal living area had measured under 3 m² (see paragraph 33 above). 83. In that regard, the Court reiterates that the requirement of 3 m² of floor space per prisoner in multi-occupancy accommodation in prisons is the relevant minimum standard for assessing conditions of detention under Article 3 of the Convention. Where the personal space falls below this minimum standard, the situation is considered so severe that a strong presumption of a violation of Article 3 of the Convention arises ( see Muršić v. Croatia [GC], no. 7334/13, §§ 110 and 124, ECHR 2016). 84. That presumption may be rebutted if the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor, if they are accompanied by sufficient freedom of movement and if the applicant is not subjected to other aggravating aspects of the conditions of his or her detention ( see Muršić, cited above, § 138). 85. In the present case, given that the applicant ’ s detention in Vaslui Prison lasted eight days in all (see paragraph 33 above), the Court is prepared to consider that period short, occasional and minor for the purposes of its case-law. However, it emphasises that the lack of sufficient personal space at Vaslui Prison had been exacerbated by detention in ordinary cells unsuited to the applicant ’ s state of health, at a time when his physical capacities had been in constant decline, such that towards the end of his time in prison he had become blind and deaf and was suffering excruciating bone pain. Moreover, the Court reiterates that the unacceptable conditions of detention and overcrowding in Vaslui Prison have already induced it to find a violation of Article 3 of the Convention ( see, for example, Todireasa v. Romania (no. 2), no. 18616/13, §§ 56-63, 21 April 2015). 86. The Court therefore reaches the conclusion that despite the short time during which the applicant was detained in a personal space of under 3 m², he was subjected to circumstances which exacerbated the poor conditions of detention. It further notes that the Government have put forward no cogent arguments to rebut the strong presumption of a violation of Article 3 concerning the applicant ’ s detention in Vaslui Prison. 87. As regards Iași Prison, where the applicant allegedly had a personal space of between 3 and 4 m² (see paragraph 33 above), even though that area does not lead to a strong presumption of a violation of Article 3 of the Convention the Court cannot overlook the fact that the ordinary cells in that prison were unsuited to the applicant ’ s severe disability. Furthermore, the poor conditions of hygiene in that prison, which the Court has noted in past cases ( see, for example, Mazalu v. Romania, no. 24009/03, §§ 52-54, 12 June 2012; Olariu v. Romania, no. 12845/08, § 31, 17 September 2013; and Axinte v. Romania, no. 24044/12, § 49, 22 April 2014), amount, in the present case, to an exacerbating circumstance, given the applicant ’ s state of health. Therefore, the Court holds that the conditions of detention in Iași Prison also subjected the applicant to an ordeal of a severity exceeding the unavoidable level of suffering inherent in detention. 88. The Court also notes that from 4 March to 25 June 2013 and from 31 August to 24 December 2013, the date of the applicant ’ s death at Bacău Hospital, he had been transferred seventeen times between prisons and seven times to the medical establishments in Bacău, Iaşi and Bucharest ( see paragraphs 12, 18, 21, 22, 24 and 28 above ). 89. The Court observes that although most of those transfers were justified on medical grounds, it cannot overlook the fact that those establishments were located far apart, some of them at distances of several hundred kilometres. 90. Having regard to the applicant ’ s ever-worsening state of health, the Court considers that the repeated changes of hospital imposed on the applicant had disastrous consequences for his well- being. It holds that those transfers were such as to create and exacerbate his feelings of anxiety regarding his adaptation to the different places of detention, the implementation of the medical treatment protocol and his continued contact with his family. 91. The Court accepts that in the instant case there was no suggestion of intent to humiliate or debase the applicant. However, the absence of such intent cannot conclusively rule out a finding of a violation of Article 3 of the Convention ( see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999 ‑ IX; Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001 ‑ III; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 160, ECHR 2016 ). 92. In the light of the particular circumstances of the present case, the Court, reiterating that it has already ruled that it would be better to avoid imposing very long, arduous journeys on prisoners who are ill ( see Viorel Burzo v. Romania, nos. 75109/01 and 12639/02, § 102, 30 June 2009, and Flamînzeanu v. Romania, no. 56664/08, § 96, 12 April 2011), considers that the frequent transfers of the applicant could not fail to subject him to an ordeal of a severity exceeding the unavoidable level of suffering inherent in detention. 93. As regards the quality of the medical care and assistance provided, the Court first of all reiterates that no one disputes the seriousness of the applicant ’ s illness or the fact that his state of health constantly worsened over time. As the Government in fact noted in their observations, on his arrival in prison on 4 March 2013 the applicant was already suffering from a disease which would be fatal in the short term because of its spread to his skeleton ( see paragraphs 9 and 73 above ). The Court has already found that, apart from the shortcomings pointed out by the senior medical officer of the oncology department of Bacău Hospital, the applicant had been treated in accordance with the doctors ’ prescriptions ( see paragraph 53 above ). However, it does not transpire from the case file that the domestic authorities ever considered the possibility of providing all the different types of treatment in the same place, which would have spared the applicant some of the transfers, or at least limited their number and reduced the harmful consequences for the patient ’ s well-being. Furthermore, the Court has already expressed the view that during the final stages of the illness when there is no further hope of remission, the stress inherent in prison life can have repercussions on the prisoner ’ s life expectancy and state of health (see, mutatis mutandis, Gülay Çetin, cited above, § 110). 94. The Court further observes that a time came when the applicant had become very severely weakened and diminished, both physically and mentally ( see paragraphs 19, 20, 21 and 24 above ), such that he could no longer perform basic everyday activities without assistance, and a fellow prisoner was appointed to assist him ( see paragraph 19 above ). The Court reiterates that it has already voiced doubts as to the adequacy of assigning unqualified persons responsibility for looking after an individual suffering from a serious illness ( see Gülay Çetin, cited above, § 112, with the references therein ). In the present case, it cannot be ascertained whether the prisoner who agreed to assist the applicant was qualified to provide support for an end-of-life patient or whether the applicant actually received proper moral or social support. Nor does it transpire from the case-file that the applicant received appropriate psychological support during his periods in hospital or prison, given that he was displaying symptoms of depression ( see paragraphs 20 and 21 above ). 95. The Court notes therefore that as his illness progressed, the applicant could no longer cope with it in prison. The national authorities should consequently have taken specific action based on humanitarian considerations ( see Gülay Çetin, cited above, § 113). 96. In connection with the latter aspect, and more specifically with the appropriateness of continuing the applicant ’ s detention, the Court cannot substitute its views for those of the domestic courts. However, it cannot be overlooked that the court of appeal, in rejecting the request for an interruption of the sentence, put forward no arguments concerning a possible threat posed to law and order by the applicant ’ s release, having regard to his state of health ( see paragraph 17 above; see also, mutatis mutandis, Gülay Çetin, cited above, § 122). Moreover, the Court notes that the applicant had at first been sentenced to a fairly short prison term, a third of which he had served ( see paragraph 15 above ). It also observes that the applicant had displayed good behaviour during the trial, that he had been afforded the most favourable detention regime ( see paragraphs 15 and 23 above ) and that because of his state of health the risk of reoffending could only have been minimal. 97. The Court also reiterates that the prisoner ’ s clinical picture is now one of the aspects to be taken into account in the procedure for enforcing a prison sentence, particularly as regards the continued detention of individuals suffering from a life-threatening pathology or persons whose condition is incompatible in the long term with prison life ( see Gülay Çetin, cited above, § 102, and the references therein ). According to the case file, however, in the present case the authorities called upon to act did not have proper regard to the realities imposed by the applicant ’ s individual case and failed to consider his real capacity for remaining in prison under the impugned conditions of detention. Even though in its judgment of 29 August 2013 the court of appeal found that the applicant could be provided with the prescribed treatment in detention ( see paragraph 17 above ), it did not consider the practical conditions and methods for administering the complicated treatment in the applicant ’ s specific situation. It failed to assess the material conditions under which the applicant was being held or to ascertain whether, in view of his state of health, those conditions were satisfactory in the light of his specific needs. Nor did it have regard to the conditions of the transfers to the various prisons and hospitals, the distances to be covered between these establishments or the number of hospitals attended by the applicant in order to receive his treatment, nor again the combined effect of all these elements on his already precarious state of health. The fact is that under such exceptional circumstances as those encountered in the present case, the said elements should, if only on humanitarian grounds, have been examined by the court of appeal in order to evaluate the compatibility of the applicant ’ s state of health with his conditions of detention. It was never argued that the national authorities could not have coped with those exceptional circumstances by taking due account of the serious humanitarian considerations at issue in the case. On the other hand, the Court considers that the decisions reached by the domestic authorities show that the impugned proceedings were conducted with the emphasis on formalities rather than on humanitarian considerations, thus preventing the dying applicant to live out his last few days in dignity ( see, mutatis mutandis, Gülay Çetin, cited above, §§ 120-124). 98. Moreover, the Court has already noted that the length of the proceedings brought by the applicant seeking an interruption of the enforcement of his sentence on medical grounds had been excessive in the light of the applicant ’ s terminal illness ( see paragraph 67 above ). Similarly, it notes that the answers provided by the prison authorities, from whom the applicant had requested help in seeking his release, were characterised by their scant consideration of the applicant ’ s specific situation ( see paragraphs 25 and 27 above ). 99. Finally, the Court reiterates that the increasingly high standard required in the area of the protection of human rights and fundamental liberties necessitates greater firmness in assessing breaches of the fundamental values of democratic societies ( see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999 ‑ V). In the instant case, the applicant had been imprisoned despite his end-of-life situation and the effects of serious medical treatment in difficult prison conditions. The Court takes the view that in such a context, lack of diligence on the authorities ’ part renders the person even more vulnerable and robs him of his dignity in the face of the fatal outcome towards which his illness is ineluctably progressing (see, mutatis mutandis, Gülay Çetin, cited above, § 122). 100. Having conducted an overall assessment of the relevant facts on the basis of the evidence presented before it, the Court finds that the national authorities failed to provide the applicant with treatment compatible with the provisions of Article 3 of the Convention, and that they inflicted inhuman treatment on someone who was suffering from a terminal illness, owing to his detention under the conditions described above. There was therefore a violation of Article 3 of the Convention in that regard. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 101. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 102. The applicant ’ s son claimed 3,000 euros (EUR) in respect of the pecuniary damage which he considers that he sustained. That amount corresponded, in his view, to the loss of the financial support which his father would have provided to him had he remained alive, and to the funeral expenses. He further claimed EUR 500,000 in respect of the non-pecuniary damage caused by his father ’ s suffering during his detention. 103. The Government considered that the claim in respect of pecuniary damage had not been substantiated. At all events, they submitted that the causal link between the alleged violations of the Convention and the pecuniary damage had not been proved. As regards the claim in respect of non- pecuniary damage, they deemed the amount claimed excessive. 104. As regards pecuniary damage, the Court does not discern a sufficient causal link between the applicant ’ s death and the violation found. It therefore rejects the applicant ’ s son ’ s claim in that respect. 105. On the other hand, the Court considers that the applicant sustained substantial non- pecuniary damage from his subjection to treatment contrary to Article 3 of the Convention during his detention. Consequently, making its assessment on an equitable basis, it finds it appropriate to award the applicant ’ s son, Mr Mircea Dorneanu, EUR 9,000 in respect of non-pecuniary damage. B. Costs and expenses 106. Since the applicant ’ s son made no claim in this respect, the Court is not called upon to rule on this point. C. Default interest 107. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the Romanian authorities’ treatment of the applicant had not been compatible with the provisions of Article 3, and that they had subjected him to inhuman treatment while he was terminally ill. The Court noted in particular that the authorities had not taken into account the realities of the applicant’s personal situation, and had not examined whether in practice he was fit to remain in detention. Accordingly, the decisions by the national authorities showed that the procedures applied had prioritised formalities over humanitarian considerations, thus preventing the dying applicant from spending his final days in dignity. |
562 | Refusal to recognise validity of Roma marriage for purposes of establishing entitlement to survivor’s pension | II. RELEVANT DOMESTIC AND EUROPEAN LAW 22. The relevant provisions of the Spanish Constitution are as follows : Article 14 “ Spaniards shall be equal before the law; they may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance. ” Article 16 “1. Freedom of ideas, religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law. 2. No one shall be required to declare his ideological, religious or other beliefs. ... ” Article 32 § 2 “ 1. Men and women shall have the right to enter into a marriage with full legal equality. 2. The law shall determine the forms of marriage, the requisite age and capacity for marriage, the rights and duties of the spouses, the grounds for separation and dissolution and the effects thereof. ” 23. The relevant provisions of the Civil Code, as in force in 1971, read as follows: Article 42 “The law recognises two forms of marriage : the canonical form and the civil form. Marriage shall be solemnised in the canonical form when at least one of the participants identifies with the Catholic faith. Civil marriage shall be authorised where it is established that neither of the parties identifies with the Catholic faith .” 24. The provisions applicable to the present case of the Civil Registration Rules, as in force at the relevant time ( Decree no. 1138/1969 of 22 May 1969), read as follows: Article 245 “Persons who have renounced the Catholic faith shall, as soon as possible, provide proof that they have given notice of such renunciation to the priest of their home parish.” Article 246 “ ... 2. In cases not provided for by the previous provision, proof of non-affiliation to the Catholic faith may be produced, either by a certificate of affiliation to another religious denomination, delivered by the competent minister or the authorised representative of the religious association in question, or in the form of an express declaration by the person concerned before the registrar. ” 25. The relevant provisions of the Civil Code, in its current version, read as follows : Article 44 “A man and a woman shall have the right to enter into marriage in accordance with the provisions of the present Code .” Article 49 “Any Spanish national is entitled to marry in Spain or abroad : 1. Before a magistrate, a mayor or a public servant designated by the present Code. 2. In the religious form provided for by law. [ Any Spanish national ] may also marry abroad in accordance with the formalities required by the law in the place where the marriage is solemnised. ” 26. The relevant provision of Law no. 30/1981 of 7 July 1981, amending the provisions of the Civil Code pertaining to marriage and the procedure to be followed for cases of nullity, judicial separation and divorce, reads as follows: Tenth amendment “ ... 2. [ As regards persons ] who have not been able to marry on account of the legislation currently in force but who have lived as [ a married couple], when the death of one of the partners has occurred before the entry into force of the present Law, the survivor will be entitled to the benefits provided for in the first paragraph of the present provision and to the corresponding pension in accordance with the following paragraph. ” 27. Section 2 of the Large-Family Protection Act (Law no. 25/1971 of 19 June 1971 ) reads as follows: “ 1. A family shall be classified as large when, in addition to fulfilling the other conditions laid down herein, it is made up of : (a) the head of the household, his spouse and four or more children ... ” 28. Section 174 of the Ley General de la Seguridad Social (“the LGSS ”) ( as in force at the material time ) read as follows: “ 1. The surviving spouse ... shall be entitled to a survivor ’ s pension. 2. ... In the event of nullity of a marriage, the surviving spouse ’ s entitlement to the survivor ’ s pension shall be recognised in proportion to the period of his or her cohabitation with the insured person, provided he or she has not acted in bad faith and has not remarried ...” 29. Section 174 of the LGSS, approved by Royal Legislative Decree no. 1/1994 of 20 June 1994, reads as follows: “ 1. A survivor ’ s pension shall be granted for life ... to the surviving spouse when, on the death of his or her spouse the latter had been working ... and had paid contributions for the statutory period ... 2. In the event of judicial separation or divorce, a survivor ’ s pension shall be granted to a person who is or was a lawful spouse, provided in the case of divorce that he or she has not remarried, in proportion to the period of cohabitation with the deceased spouse and regardless of the causes of the judicial separation or divorce. In the event of nullity of a marriage, a survivor ’ s pension shall be granted to the surviving spouse provided that he or she has not acted in bad faith and has not remarried, in proportion to the period of his or her cohabitation with the insured person. ... ” 30. Law no. 40/2007 of 4 December 2007 on social security measures, amending the LGSS, reads as follows: Third transitional amendment “Exceptionally, a survivor ’ s pension shall be granted where the death of the insured person occurred before the entry into force of the present Act, subject to fulfilment of the following conditions: (a) at the time of the death of the insured person, who was working and paying social security contributions as provided for by section 174 of the simplified text of the General Social Security Act, [ the survivor ] was unable to claim an entitlement to the survivor ’ s pension; ( b ) the beneficiary and the insured person lived together continuously as unmarried partners ... for at least six years prior to the death; ( c ) the insured person and the beneficiary had children together; ( d ) the beneficiary has no recognised entitlement to receive a contributory pension from the social security; ( e ) to have access to the pension [hereunder], the claim must be filed within a non-extendable period of twelve months following the entry into force of the present Act. The recognition of the pension entitlement will take effect from 1 January 2007, subject to the fulfilment of all the conditions provided for in the present provision. ” 31. Various cooperation agreements have been entered into between the Government and religious denominations : agreement with the Holy See (Concordat of 1979), agreement with the Evangelical Federation under Law no. 24/1992 of 10 November 1992, agreement with the Islamic Commission under Law no. 26/1992 of 10 November 1992, and agreement with the Jewish Federation under Law no. 25/1992 of 10 November 1992. Marriages solemnised according to the rites of those religious denominations are therefore recognised by the Spanish State as constituting a valid form of expression of consent to marriage. They thus produce civil effects by virtue of agreements entered into with the State. 32. The relevant case-law of the Constitutional Court is as follows: “ Constitutional Court judgments no. 260/1988 of 22 December 1988 and no. 155/1998 of 13 June 1998, among others, concerned entitlements to a survivor ’ s pension in cases where canonical marriage had not been possible because of the impossibility of divorce. Constitutional Court judgment no. 180/2001 of 17 September 2001 recognised the right to compensation for the death of a partner if a canonical marriage had not been possible on account of a conflict with freedom of conscience or religion ( before the legislative amendment of 1981). Constitutional Court judgment no. 199/2004 of 15 November 2004 concerned a survivor ’ s pension entitlement derived from a canonical marriage that did not fulfil the statutory conditions of form because the parties had voluntarily omitted to register it in the Civil Register. The Constitutional Court recognised in that case an entitlement for the widower to receive a survivor ’ s pension. ” 33. The Council of Europe ’ s Framework Convention for the Protection of National Minorities, opened for signature on 1 February 1995, contains the following provisions in particular : Article 1 “The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international cooperation. ...” Article 4 “ 1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. 2. The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. 3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination. ” Article 5 “ 1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. 2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation. ” 34. Spain signed the Convention on the day that it was opened for signature and ratified it on 1 September 1995. It came into force in respect of Spain on 1 February 1998. THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 35. The applicant complained that the refusal to grant her a survivor ’ s pension, on the ground that her marriage solemnised according to the rites of the Roma minority to which she belonged had no civil effects, infringed the principle of non-discrimination recognised by Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. The provisions in question read as follows : Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...” A. Admissibility 36. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions ( a) The applicant 37. The applicant observed that the Government had not explained why her situation had been regarded as a “ more uxorio ” cohabitation and not as a marriage which was null and void but believed in good faith to exist, and which might entitle her, as surviving spouse, to a survivor ’ s pension. She pointed out that there had been no reason for her to believe that the welfare entitlements she had enjoyed during her husband ’ s life would be withdrawn from her after his death. 38. The applicant emphasised that, in other cases, the inexistence of a “legal” marriage had not precluded the granting of such a pension : under the General Social Security Act a pension entitlement was granted, in the event of the nullity of a marriage, to a spouse who had shown good faith. In addition, case-law afforded a pension entitlement to couples who believed in the existence of a marriage even though it was not registered civilly, to couples who were prevented from legally marrying because of the impossibility of divorce, or to couples who did not marry because it was against their beliefs. ( b) The Government 39. The Government contested that argument. They took the view that, the law applicable to the applicant being the same for all Spanish nationals, there had been no discrimination based on ethnic origin or any other reason and that the alleged difference in treatment could be explained by the fact that the applicant had not married M.D. but had had a more uxorio relationship with him. 40. The Government emphasised that there was no obligation to treat in the same manner those who had complied with the statutory formalities and those who, without being prevented from doing so, had not complied with them. The statutory requirement that there had to be a legal marital relationship for a survivor ’ s pension entitlement to be granted did not constitute discrimination on racial or ethnic grounds. The refusal to grant the said pension to the applicant stemmed solely from her free and voluntary decision not to observe the statutory formalities of marriage, which were not based on the fact of belonging to a particular race, nor on the traditions, habits or customs of a particular ethnic group to the detriment of others. Those formalities did not therefore constitute direct or indirect discrimination against the Roma community. ( c) The third party 41. Unión Romaní pointed out that Roma marriage was no different to any other types of marriage. It explained that Roma marriage existed when a man and a woman expressed their intention to live together and their desire to found a family, which was the foundation of the Roma community. It took the view that it was disproportionate for the Spanish State, having issued the applicant and her family with a family record book, having granted them large-family status, having provided the applicant and her six children with health care and having collected her husband ’ s contributions for over nineteen years, now to disregard the validity of her Roma marriage when it came to the survivor ’ s pension. 2. The applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 42. The Court reiterates that Article 14 of the Convention has no independent existence since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and of the Protocols thereto ( see, among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 58, ECHR 2008 ). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles ( see, among many other authorities, Gaygusuz v. Austria, 16 September 1996, § 36, Reports of Judgments and Decisions 1996 ‑ IV; Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000 ‑ IV; Koua Poirrez v. France, no. 40892/98, § 36, ECHR 2003 ‑ X; and Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009 ). The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide ( see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X ). 43. It should therefore be determined whether the applicant ’ s interest in receiving a survivor ’ s pension from the State falls “within the ambit” or “within the scope” of Article 1 of Protocol No. 1. 44. The Court has previously held that all principles which apply generally in cases concerning Article 1 of Protocol No. 1 are equally relevant when it comes to welfare benefits ( see Andrejeva, cited above, § 77). Thus this provision does not, as such, guarantee the right to acquire property ( see Kopecký v. Slovakia [GC], no. 44912/98, § 35 (b), ECHR 2004 ‑ IX ) or, as such, any entitlement to a pension of a given amount ( see, for example, Domalewski v. Poland ( dec. ), no. 34610/97, ECHR 1999 ‑ V, and Janković v. Croatia ( dec. ), no. 43440/98, ECHR 2000 ‑ X). In addition, Article 1 places no restriction on the Contracting State ’ s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements ( see Stec and Others ( dec. ), cited above, § 54). 45. As the Court held in Stec and Others ( dec. ), ( cited above, § 55 ) : “ In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question ... Although [Article 1 of] Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14. ” 46. In view of the foregoing, since the applicant belongs to the Roma community and was the spouse of M.D., as had been recognised for certain purposes by the Spanish authorities but not for the survivor ’ s pension, the Court finds that the applicant ’ s proprietary interests fall within the ambit of Article 1 of Protocol No. 1 and the right guaranteed therein to the peaceful enjoyment of possessions, this being sufficient for Article 14 of the Convention to be engaged. 3. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (a) The Court ’ s case-law 47. According to the Court ’ s established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. The “lack of objective and reasonable justification” means that the impugned difference in treatment does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised” ( see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 175 and 196, ECHR 2007 ‑ IV, with further references ). 48. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment ( see, among other authorities, Gaygusuz, § 42, and Thlimmenos, § 40, both cited above ). The scope of this margin will vary according to the circumstances, the subject matter and the background. Thus, for example, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may, without objective and reasonable justification, give rise to a breach of that Article ( see Thlimmenos, cited above, § 44; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI; and D.H. and Others, cited above, § 175). 49. Similarly, a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the State ’ s policy choice unless it is “manifestly without reasonable foundation” ( see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997 ‑ VII, and the Grand Chamber judgment in Stec and Others, cited above, § 52 ). 50. Lastly, as regards the burden of proof in the sphere of Article 14 of the Convention, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified ( see D.H. and Others, cited above, § 177 ). ( b) Application of the case-law to the present case 51. As to the circumstances of the present case, the applicant complained about the refusal to grant her a survivor ’ s pension on the ground that she had not been married to M.D, her marriage according to Roma rites and traditions having been regarded as a more uxorio relationship – a mere de facto marital relationship. For the applicant, to treat her relationship with M.D. as a mere de facto marital relationship for the purposes of the survivor ’ s pension constituted discrimination in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. That discrimination was based on the fact that her application for a survivor ’ s pension had received different treatment in relation to other equivalent cases in which an entitlement to a survivor ’ s pension had been recognised even though the beneficiary had not been married according to the statutory formalities, whereas, in her case, neither her good faith nor the consequences of the fact that she belonged to the Roma minority had been taken into account. 52. The Court finds that the applicant was married to M. D. in November 1971 according to the rites and traditions of the Roma community. They had six children together. The applicant lived with M.D. until his death on 24 December 2000. On 11 August 1983 the civil registration authorities issued them with a family record book indicating the couple and their children. On 14 October 1986 they were granted the administrative status of “ large family ”, for which the parents had to be “spouses ” ( see paragraph 27 above ), and were able to exercise all the corresponding rights. Moreover, M.D. was covered by social security, to which he contributed for nineteen years, three months and eight days, and his social security benefit card indicated that he supported the applicant, as his wife, and his six children. The Court notes that this is an official document as it is stamped by Agency no. 7 of Madrid of the National Institute of Social Security. 53. As regards the arrangements for survivor ’ s pensions at the material time, the Court observes that the General Social Security Act, according to the version then in force, recognised an entitlement to a survivor ’ s pension for the surviving spouse. That statutory provision was, however, supplemented and nuanced both in the law itself and in the case-law of the domestic courts, including that of the Constitutional Court ( see paragraph 32 above). The constitutional case-law has indeed taken into account, in recognising survivor ’ s pensions, the existence both of good faith and of exceptional circumstances rendering the celebration of marriage impossible, even though no legally valid marriage has taken place. The Court notes that the tenth amendment to Law no. 30/1981 of 7 July 1981, amending the provisions pertaining to marriage ( see paragraph 26 above ), recognised an entitlement to a survivor ’ s pension even in the absence of marriage, in cases where it had not been possible to give consent according to canonical rites. It observes that, according to the interpretation of that provision by constitutional case-law, a survivor ’ s pension may be granted in the event of an impediment to marriage ( in the canonical form ), for example where a divorce could not be obtained, or where marriage was against the couple ’ s beliefs ( see paragraph 32 above ). The General Social Security Act, as in force at the material time, recognised in section 174 an entitlement to a survivor ’ s pension where there had been a belief in good faith in the existence of a marriage that was null and void. The Constitutional Court has moreover recognised, in particular in its judgment no. 1 99/ 20 04 (see paragraph 32 above ), a survivor ’ s pension entitlement in the event of a canonical marriage where the statutory requirements were not met, as the marriage had not been registered in the Civil Register for reasons of conscience. 54. In view of the foregoing, the question arising in the present case is whether the fact that the applicant was denied the right to receive a survivor ’ s pension reveals discriminatory treatment based on her affiliation to the Roma minority, in relation to the manner in which legislation and case-law have treated similar situations where the persons concerned believed in good faith that they were married even though the marriage was not legally valid. 55. The applicant based her claim, firstly, on her conviction that her marriage, solemnised according to Roma rites and traditions, was valid, and secondly, on the conduct of the authorities, which had officially recognised her as the spouse of M.D. and had consequently accepted, in her submission, the validity of her marriage. 56. The Court takes the view that the two questions are closely linked. It observes that the domestic authorities did not deny that the applicant believed in good faith that she was really married. Her belief was all the more credible as the Spanish authorities had issued her with a number of official documents certifying her status as spouse of M.D. For the Court, it is necessary to emphasise the importance of the beliefs that the applicant derives from belonging to the Roma community – a community which has its own values that are well established and deeply rooted in Spanish society. 57. The Court observes, in the present case, that when the applicant got married in 1971 according to Roma rites and traditions, it was not possible in Spain, except by making a prior declaration of apostasy, to be married otherwise than in accordance with the canon-law rites of the Catholic Church. The Court takes the view that the applicant could not have been required, without infringing her right to religious freedom, to marry legally, that is to say under canon law, in 1971, when she expressed her consent to marry according to Roma rites. 58. Admittedly, following the entry into force of the Spanish Constitution of 1978 and by virtue of Law no. 30/1981 of 7 July 1981 (paragraph 26 above ), the applicant could have opted for a civil marriage. The applicant argued, however, that she believed in good faith that the marriage solemnised according to Roma rites and traditions produced all the effects inherent in the institution of marriage. 59. In order to assess the applicant ’ s good faith the Court must take into consideration the fact that she belongs to a community within which the validity of the marriage, according to its own rites and traditions, has never been disputed or regarded as being contrary to public order by the Government or the domestic authorities, which even recognised in certain respects the applicant ’ s status as spouse. The Court takes the view that the force of the collective beliefs of a community that is well-defined culturally cannot be ignored. 60. The Court observes in this connection that there is an emerging international consensus among the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (see paragraph 33 above, in particular the Council of Europe ’ s Framework Convention for the Protection of National Minorities), not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity that is of value to the whole community ( see Chapman v. the United Kingdom [GC], no. 27238/95, § 93, ECHR 2001 ‑ I ). 61. The Court takes the view that, while the fact of belonging to a minority does not create an exemption from complying with marriage laws, it may have an effect on the manner in which those laws are applied. The Court has already had occasion to point out in its Buckley judgment ( albeit in a different context ), that the vulnerable position of Roma means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases ( see Buckley v. the United Kingdom, 25 September 1996, §§ 76, 80 and 84, Reports 1996 ‑ IV; Chapman, cited above, § 96; and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004 ). 62. In the present case, the applicant ’ s belief that she was a married woman, with all the effects inherent in that status, was undeniably strengthened by the attitude of the authorities, who had recognised her as the wife of M.D. and had done so very concretely by issuing her with certain social security documents, in particular a registration document showing her as a wife and the mother of a large family, this situation being regarded as particularly worthy of assistance and requiring, pursuant to Law no. 25/1971 of 19 June 1971, recognition of status as spouse. 63. For the Court, the applicant ’ s good faith as to the validity of her marriage, being confirmed by the authorities ’ official recognition of her situation, gave her a legitimate expectation of being regarded as the spouse of M.D. and of forming a recognised married couple with him. After the death of M.D. it was natural for the applicant to hope that she would be entitled to a survivor ’ s pension. 64. Consequently, the refusal to recognise the applicant as a spouse for the purposes of the survivor ’ s pension was at odds with the authorities ’ previous recognition of such status. Moreover, the applicant ’ s particular social and cultural situation were not taken into account in order to assess her good faith. In this connection, the Court notes that, under the Framework Convention for the Protection of National Minorities ( see paragraphs 33 and 34 above ), the States Parties to the Convention are required to take due account of the specific conditions of persons belonging to national minorities. 65. The Court takes the view that the refusal to recognise the applicant ’ s entitlement to a survivor ’ s pension constituted a difference in treatment in relation to the treatment afforded, by statute or case-law, to other situations that must be considered equivalent in terms of the effects of good faith, such as belief in good faith in the existence of a marriage that is null and void ( section 174 of the General Social Security Act, and Constitutional Court judgment no. 199/2004 of 15 November 2004 – see paragraphs 29 and 32 above –, concerning a failure to register a religious marriage on grounds of conscience ). The Courts finds it established that, in the circumstances of the present case, the applicant ’ s situation reveals a disproportionate difference in treatment in relation to the treatment of marriages that are believed in good faith to exist. 66. Admittedly, section 174 of the LGSS, as in force at the material time, recognised a survivor ’ s pension entitlement in the absence of a legal marriage only where the marriage was null and void and was believed in good faith to exist. However, that provision cannot exempt a respondent State from all responsibility under the Convention. The Court observes in this connection that Law no. 40/2007 introduced into the LGSS the possibility for a survivor ’ s pension to be granted in cases of a de facto marital relationship ( see paragraph 30 above ). 67. The Court observes that, in its judgment of 30 May 2002, Labour Court no. 12 of Madrid interpreted the applicable legislation in the applicant ’ s favour. It referred to Article 4 § 1 of the Civil Code, which provides that norms may be applied mutatis mutandis where they do not specifically contemplate the case in question but a comparable one, the object in both cases being regarded as similar. The Labour Court accordingly interpreted the applicable legislation in accordance with the criteria set out by the Court in its above-mentioned Buckley judgment. 68. The Labour Court judgment was, however, overturned on appeal by the judgment of 7 November 2002. The Higher Court of Justice of Madrid then took the view ( see paragraph 15 above ) that “the principle of equality and non-discrimination [was] based on the idea that equal situations [had to] be treated equally” and “ that equal treatment applied to situations which [were] not equal constitute [d] injustice”. The Court notes that the appellate court drew no conclusion from the specificities of the Roma minority, even though it did recognise that Roma marriage was “ certainly meaningful and enjoy[ ed ] social recognition in the environment concerned ” and that the morality of the rite or its conformity with public order were not called into question. For the Higher Court of Justice, it was clear that this situation “[did] not exclude, and currently [did] not supersede, the law that [was] in force and [was] applicable to the present case ”. 69. In the light of the foregoing and in view of the specific circumstances of the present case, the Court finds that it is disproportionate for the Spanish State, which issued the applicant and her Roma family with a family record book, granted them large-family status, afforded health-care assistance to her and her six children and collected social security contributions from her Roma husband for over nineteen years, now to refuse to recognise the effects of the Roma marriage when it comes to the survivor ’ s pension. 70. Lastly, the Court cannot accept the Government ’ s argument that it would have been sufficient for the applicant to enter into a civil marriage in order to obtain the pension claimed. The prohibition of discrimination enshrined in Article 14 of the Convention is meaningful only if, in each particular case, the applicant ’ s personal situation in relation to the criteria listed in that provision is taken into account exactly as it stands. To proceed otherwise in dismissing the victim ’ s claims on the ground that he or she could have avoided the discrimination by altering one of the factors in question – for example, by entering into a civil marriage – would render Article 14 devoid of substance. 71. Consequently, the Court finds that in the present case there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 12 OF THE CONVENTION 72. The applicant complained that the failure in Spain to recognise Roma marriage as having civil effects – it being the only form of marriage to produce effects erga omnes within her own community – even though the minority had been present in Spain for at least five hundred years, entailed a breach of her right to marry. She relied on Article 14 of the Convention taken in conjunction with Article 12. Those provisions read as follows : Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 12 “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” 73. The Government contested the applicant ’ s argument. They contended that there had been nothing to prevent her from entering into a civil marriage and took the view that Articles 12 and 14 of the Convention could not be interpreted as obliging the authorities to treat, on an equal footing, married couples who had complied with the statutory formalities and all other couples who had not done so. They referred to the margin of appreciation enjoyed by States in order to determine the exercise of the rights provided for under Article 12 of the Convention. 74. For the Government, the right to marry had been fully upheld in the present case, in the same conditions as for any other citizen. No discrimination could be found. The applicant had voluntarily decided not to get married according to the formalities laid down in the law. The Spanish State could not therefore be criticised for not attributing the same effects to this situation as it did to marriages that met the statutory requirements. Articles 12 and 14 of the Convention could not be interpreted as obliging a State to accept a particular form of expression of consent to marry purely on account of a community ’ s social roots or its traditions. It was not therefore contrary to Article 12 of the Convention for the State to impose particular formalities for the expression of such consent. 75. The applicant asserted that in 1971, when she married M.D. according to the Roma rites, only religious marriage existed in Spain and civil marriage was not possible except in cases of apostasy. She married according to Roma rites because they were the only rites recognised by her community and because, in good faith, she was not free to give her consent in any other form. The applicant therefore protested that she was deprived of welfare entitlements on the pretext that she had not been married to M.D., refusing to be considered merely as his “partner”. 76. For the applicant, the non-recognition under Spanish law of Roma rites as a form of expression of consent to marry, while certain religious rites did constitute valid forms of expression of consent, entailed, per se, a violation of the rights invoked. The applicant pointed out that Roma marriage had existed for over five hundred years in Spanish history; it consisted of a form of expression of consent which was neither civil nor religious but was deeply rooted in the culture of her community, being recognised and producing effects erga omnes in that community, through the validating effect of custom. Spanish law did not take into account the specificities of the Roma minority because it obliged that community to comply with a form of expression of consent that its members did not recognise. 77. Unión Romaní referred to the finality of the consent given in Roma marriage and sought recognition by the State of the validity of their rites. It argued that the Roma community in Spain had maintained its traditions for centuries and invited the Court to find that respect for ethnic minorities, with their traditions and cultural heritage and identity, was an essential component of the Convention. 78. The Court reiterates that Article 12 secures the fundamental right of a man and woman to marry and to found a family ( see F. v. Switzerland, 18 December 1987, § 32, Series A no. 128, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 98, ECHR 2002 ‑ VI ). The exercise of the right to marry gives rise to social, personal and legal consequences. It is subject to the national laws of the Contracting States but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired ( see I. v. the United Kingdom [GC], no. 25680/94, § 79, 11 July 2002). 79. The Court observes that civil marriage in Spain, as in force since 1981, is open to everyone, and takes the view that its regulation does not entail any discrimination on religious or other grounds. The same form of marriage, before a mayor, a magistrate or another designated public servant, applies to everyone without distinction. There is no requirement to declare one ’ s religion or beliefs or to belong to a cultural, linguistic, ethnic or other group. 80. It is true that certain religious forms of expression of consent are accepted under Spanish law, but those religious forms ( Catholic, Protestant, Muslim and Jewish ) are recognised by virtue of agreements with the State and thus produce the same effects as civil marriage, whereas other forms ( religious or traditional ) are not recognised. The Court observes, however, that this is a distinction derived from religious affiliation, which is not pertinent in the case of the Roma community. But that distinction does not impede or prohibit civil marriage, which is open to the Roma under the same conditions of equality as to persons not belonging to their community, and is a response to considerations that have to be taken into account by the legislature within its margin of appreciation, as the Government have argued. 81. Accordingly, the Court finds that the fact that Roma marriage has no civil effects as desired by the applicant does not constitute discrimination prohibited by Article 14. It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 82. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 83. The applicant initially claimed 60, 959. 09 euros (EUR) in respect of the pecuniary damage that she alleged to have sustained. At the hearing of 26 May 2009 she indicated that she had been receiving a survivor ’ s pension since 1 January 2007 by virtue of the third amendment of Law no. 4 0 /2007 of 4 December 2007 on social security measures, as de facto partner of M.D. ( see paragraph 21 above ). She accordingly reduced her claim for pecuniary damage to the sum of EUR 53, 319. 88. She further claimed EUR 30, 479. 54 in respect of non-pecuniary damage. 84. The Government contested her claims. 85. The Court reiterates that the well-established principle underlying the provision of just satisfaction is that the applicant should, as far as possible, be put in the position he or she would have enjoyed had the violation of the Convention not occurred ( see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002 ‑ IV ). Furthermore, the indispensable condition for making an award in respect of pecuniary damage is the existence of a causal link between the damage alleged and the violation found (see Nikolova v. Bulgaria [GC], no. 31195/96, § 73, ECHR 1999-II), and this is also true of non-pecuniary damage (see Kadiķis v. Latvia (no. 2), no. 62393/00, § 67, 4 May 2006). 86. Without wishing to speculate on the precise amount of the pension to which the applicant would have been entitled had the violation of Article 14 not occurred, the Court must have regard to the fact that she undoubtedly suffered pecuniary and non-pecuniary damage. Ruling on an equitable basis, as is required by Article 41 of the Convention, and having regard to all the special circumstances of the case, it awards her EUR 70,000 to cover all heads of damage (see, mutatis mutandis, Koua Poirrez v. France, no. 40892/98, § 70, ECHR 2003-X ). B. Costs and expenses 87. The applicant claimed EUR 3, 480 for costs and expenses incurred before the Constitutional Court and EUR 3, 382. 56 for those relating to the proceedings before this Court. She produced supporting documents in respect of this claim. 88. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 6, 862. 56 for the costs and expenses incurred in the domestic proceedings and the proceedings before it, less the EUR 1, 450 already paid by the Council of Europe in the present case by way of legal aid. It thus awards the applicant EUR 5, 412 .56. C. Default interest 89. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken together with Article 1 (protection of property) of Protocol No. 1, finding that it was disproportionate for the Spanish State, which had provided the applicant and her family with health coverage and collected social security contributions from her husband for over 19 years, then to refuse to recognise her Roma marriage when it came to granting her a survivor’s pension on her husband’s death. |
1,065 | Right to a fair trial (Article 6 of the Convention) | II. Relevant domestic law A. The Ordinance on Direct Federal Tax 20. At the relevant time, tax evasion was punishable by a fine of up to four times the amount evaded, the fine being payable in addition to the amount due (Article 129 § 1 of the Ordinance on Direct Federal Tax). 21. Article 130 § 1 provided, inter alia : “If the evasion is discovered only after the death of the taxpayer, proceedings shall be brought against his heirs. Irrespective of personal guilt, the heirs shall be jointly liable for the deceased person’s evaded taxes and the fine incurred by him up to an amount not exceeding their share in the estate.” B. The Swiss Civil Code 22. According to Article 537 § 1 of the Swiss Civil Code, an inheritance passes upon the death of the deceased. 23. The relevant parts of Article 560 of the Swiss Civil Code provide: “1. The heirs shall automatically acquire the entire estate as soon as it passes. 2. Subject to the statutory exceptions, all claims and actions, property rights and other rights in rem and possessions of the deceased shall automatically pass to them, and they shall become personally liable for the deceased’s debts.” 24. Under Article 566 § 1 of the Swiss Civil Code, the heirs have the right to renounce the inheritance which has devolved to them. The time-limit for so doing is three months (Article 567 § 1). C. Procedure 25. It was open to the taxpayer to lodge an objection against an assessment of direct federal tax to the authority which had made it (Article 105 of the Ordinance on Direct Federal Tax). 26. An appeal against the decision given in the objection proceedings lay to the Cantonal Tax Appeals Board (Article 106). The Direct Federal Tax Department of the canton and the federal tax authorities could also bring such an appeal (Article 107). 27. An administrative-law appeal lies to the Federal Court against the decision of the Federal Tax Appeals Board (section 98 (e) of the Federal Judicature Act). Such an appeal may be lodged by both the tax debtor and the federal tax authorities (Article 112 of the Ordinance on Direct Federal Tax). 28. If the Federal Court orders an exchange of written pleadings, it asks the authority which gave the decision to forward the case file (section 110 (2) of the Federal Judicature Act), at the same time inviting it to submit its comments in writing (section 110 (1)). The cantonal authority which gave the last decision at cantonal level is also invited to comment (section 110 (3)), as is the federal authority which would itself have been entitled to lodge an appeal (section 110 (1)). 29. At the material time, section 109 (1) of the Federal Judicature Act made it possible for a three-judge Chamber of the Federal Court to dismiss an administrative-law appeal as manifestly ill-founded without a hearing, provided that its decision was unanimous. D. The Swiss Criminal Code 30. Under Article 333 § 1 of the Swiss Criminal Code, the general provisions of the Code apply to offences created by other federal laws unless the latter provide otherwise. 31. Article 48 § 3 of the Criminal Code provides that a fine lapses if the convicted person dies. However, pursuant to Article 333 § 1 of the Criminal Code, Article 130 § 1 of the Ordinance on Direct Federal Tax (see paragraph 21 above) derogates from this principle as a lex specialis. E. Subsequent developments 32. Section 179 (1) of the Federal Direct Taxation Act of 14 December 1990, in force since 1 January 1995, provides for the liability of heirs, inter alia, for any fines determined with legal force. According to section 179 (2), the heirs shall not be so liable if the tax-evasion proceedings are concluded after the death of the taxpayer, provided that the heirs themselves are guiltless and do what they can to enable the tax authorities to make a correct assessment. PROCEEDINGS BEFORE THE COMMISSION 33. Mrs A.P., Mr M.P. and Mr T.P. applied to the Commission on 13 March 1992. They relied on Article 6 §§ 1 and 2 of the Convention, complaining that, irrespective of any personal guilt, they had been convicted of an offence allegedly committed by Mr P. and that they had not had a fair and public hearing by an independent and impartial tribunal established by law. 34. The Commission declared the application (no. 19958/92) admissible on 16 October 1995. In its report of 18 April 1996 (Article 31), it expressed the opinion that there had been a violation of Article 6 § 1 of the Convention on account of the failure to hold a public hearing (twenty votes to eight) but not of Article 6 § 2 (seventeen votes to eleven). The full text of the Commission’s opinion and of the eight separate opinions contained in the report is reproduced as an annex to this judgment [5]. FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT 35. The Agent of the Government, speaking at the Court’s hearing, asked the Court to find that there had not been a breach of the requirements of Article 6. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 36. The applicants alleged that, irrespective of any personal guilt, they had been convicted of an offence allegedly committed by someone else, contrary to Article 6 § 2 of the Convention, which provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Neither the Government nor the Commission shared this view. A. Applicability of Article 6 37. In the Government’s view, which the Commission shared in substance, Article 6 was not applicable to the case, since no “criminal charge” had been brought against the applicants. They pointed to the fact that in cases such as the present one there was no question of personal guilt on the part of the heirs. For that reason, no entry had been made in the criminal record of any of the heirs. Rather, it was the guilt of the deceased which had to be demonstrated. The fact that proceedings had been brought against the heirs was explained by the fact that in Swiss law the estate as such had no legal personality, so that the deceased’s assets and liabilities fell directly to the heirs. Moreover, the heirs themselves were liable for the evaded taxes and fines only up to an amount not exceeding their share in the estate, and they could escape liability altogether by declining to accept their inheritance. 38. The applicants contended that the main feature of the case was that the tax evasion committed by the deceased was the basis of a fine imposed on them. If the deceased had been alive when the evasion was discovered, the fine would have been imposed on him as a penal measure. The fact that no entry was made in the criminal records of the heirs was irrelevant, since in some cases (for example, for petty offences) no such entry was made even concerning those responsible. The possibility of renouncing the inheritance could not be taken into consideration either, since the period during which this was possible had expired long before the tax evasion by the deceased was discovered. Escaping the fine in this way had accordingly never been an option open to the applicants. 39. The Court reiterates that the concept of “criminal charge” within the meaning of Article 6 is an autonomous one. In earlier case-law the Court has established that there are three criteria to be taken into account when it is being decided whether a person was “charged with a criminal offence” for the purposes of Article 6. These are the classification of the offence under national law, the nature of the offence and the nature and degree of severity of the penalty that the person concerned risked incurring (see, among other authorities, the Öztürk v. Germany judgment of 21 February 1984, Series A no. 73, p. 18, § 50). 40. As regards the nature and severity of the penalty risked, the fines were, in the Court’s opinion, not inconsiderable: they amounted to CHF 3,875.85 for the fiscal year 1981/82 and CHF 2,882.90 for 1983/84 (see paragraph 14 above). Moreover, in setting these figures, the authorities took the applicants’ cooperative attitude into account; the fines might in fact have been four times as large (see paragraph 14 above). 41. As regards the nature of the offence, it is noted that tax legislation lays down certain requirements, to which it attaches penalties in the event of non-compliance. The penalties, which in the present case take the form of fines, are not intended as pecuniary compensation for damage but are essentially punitive and deterrent in nature (see, mutatis mutandis, the Bendenoun v. France judgment of 24 February 1994, Series A no. 284, p. 20, § 47). 42. As regards the classification of the proceedings under national law, the Court attaches weight to the finding of the highest court in the land, the Federal Court, in its judgment in the present case, that the fine in question was “penal” in character and depended on the “guilt” of the offending taxpayer (see paragraph 19 above). 43. Having regard to the above features, the Court considers that Article 6 is applicable under its criminal head. Accordingly, the question arises whether Article 6 § 2 was complied with. B. Compliance with Article 6 § 2 44. The applicants contended that they had been compelled by a legal presumption to assume criminal liability for tax evasion allegedly committed by the deceased Mr P. If, as in the present case, the applicants did their utmost to enable the authorities to make a correct assessment of back tax, the fine would be reduced but would nevertheless be imposed. Thus, although they were themselves blameless, they could not avoid being fined for Mr P.’s offence. Moreover, the imposition of the fine on them presupposed a tacit conviction of the deceased without any form of judicial review. 45. The Government, with whom the Commission concurred in substance, considered that the guilt of the deceased had been lawfully established by the judgment of the Zurich Federal Tax Appeals Board of 19 September 1990 (see paragraphs 15 and 16 above). There was no question of punishing the applicants for criminal acts committed by the deceased. Rather, the liability of the person who had evaded taxes was imposed on his estate. This was clear from the fact that the applicants would not have been liable to pay the fine if they had renounced the inheritance, and that in any event they were not liable for more than their share in the estate. 46. The Court observes that no issue could be, nor was, taken with the recovery from the applicants of unpaid taxes. Indeed, the Court finds it normal that tax debts, like other debts incurred by the deceased, should be paid out of the estate. Imposing criminal sanctions on the living in respect of acts apparently committed by a deceased person is, however, a different matter. Such a situation calls for careful scrutiny by the Court. 47. In this case the Court does not find it necessary to decide whether the guilt of the deceased was lawfully established. Pursuant to Article 130 § 1 of the Ordinance on Direct Federal Tax the proceedings were brought against the applicants themselves and the fine was imposed on them (see paragraphs 11 and 21 above). It must therefore be accepted that, whether or not the late Mr P. was actually guilty, the applicants were subjected to a penal sanction for tax evasion allegedly committed by him. 48. It is a fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act. This is in fact recognised by the general criminal law of Switzerland, particularly by Article 48 § 3 of the Swiss Criminal Code, under which a fine lapses if the convicted person dies (see paragraph 31 above). In the Court’s opinion, such a rule is also required by the presumption of innocence enshrined in Article 6 § 2 of the Convention. Inheritance of the guilt of the dead is not compatible with the standards of criminal justice in a society governed by the rule of law. There has accordingly been a violation of Article 6 § 2. II. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 49. The applicants further alleged that they had not had an oral hearing before an independent and impartial tribunal, and that they had not had the opportunity to exercise the rights of the defence, contrary to Article 6 §§ 1 and 3, the relevant parts of which provide: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing ... ...” 50. In view of its conclusion that the imposition of a criminal sanction on the applicants amounted to a breach of Article 6 § 2, the Court does not consider it necessary to address these issues. III. APPLICATION OF ARTICLE 50 OF THE CONVENTION 51. Article 50 of the Convention provides: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” The applicants made no claims in respect of damage or of costs and expenses incurred in the domestic proceedings. A. Costs and expenses 52. In respect of costs and expenses incurred in the proceedings before the Strasbourg institutions, the applicants claimed 7,000 Swiss francs (CHF). 53. The Government considered CHF 3,000 in respect of the Strasbourg proceedings to be reasonable. The Delegate of the Commission did not comment. 54. The Court is satisfied that the costs stated were necessarily incurred, and considers that the sum claimed is reasonable as to quantum. It therefore allows the claim in full. B. Default interest 55. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum. | The Court held that there had been a violation of Article 6 § 2 (right to a fair trial – presumption of innocence) of the Convention. It observed that no issue could be, nor had been, taken with the recovery from the applicants of unpaid taxes. Indeed, the Court found it normal that tax debts, like other debts incurred by the deceased, should be paid out of the estate. Imposing criminal sanctions on the living in respect of acts apparently committed by a deceased person was, however, a different matter. In the present case, whether or not the deceased was actually guilty, the applicants had been subjected to a penal sanction for tax evasion allegedly committed by him. It is, however, a fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act and this was in fact recognised by the general criminal law of Switzerland. In the Court’s opinion, such a rule was also required by the presumption of innocence enshrined in Article 6 § 2 of the Convention. Inheritance of the guilt of the dead is not compatible with the standards of criminal justice in a society governed by the rule of law. |
940 | Principle of impartiality | II. THE RELEVANT LEGISLATION A. Status and powers of investigating judges 15. Investigating judges, who are appointed by the Crown "from among the judges of the court of first instance" (Article 79 of the Judicial Code), conduct the preparatory judicial investigation (Articles 61 et seq. of the Code of Criminal Procedure). The object of this procedure is to assemble the evidence and to establish any proof against the accused as well as any circumstances that may tell in his favour, so as to provide the chambre du conseil or the chambre des mises en accusation, as the case may be, with the material which it needs to decide whether the accused should be committed for trial. The procedure is secret; it is not conducted in the presence of both parties (non contradictoire ) nor is there any legal representation. The investigating judge also has the status of officer of the criminal investigation police (police judiciaire ). In this capacity, he is empowered to inquire into serious and lesser offences (crimes et délits ), to assemble evidence and to receive complaints from any person claiming to have been prejudiced by such offences (Articles 8, 9 in fine and 63 of the Code of Criminal Procedure). When so acting, he is placed under the "supervision of the procureur général (State prosecutor)" (Article 279 of the Code of Criminal Procedure and Article 148 of the Judicial Code), although this does not include a power to give directions. "In all cases where the suspected offender is deemed to have been caught in the act", the investigating judge may take "directly" and in person "any action which the procureur du Roi (public prosecutor) is empowered to take" (Article 59 of the Code of Criminal Procedure). 16. Save in the latter category of case, the investigating judge can take action only after the matter has been referred to him either by means of a formal request from the procureur du Roi for the opening of an inquiry (Articles 47, 54, 60, 61, 64 and 138 of the Code of Criminal Procedure) or by means of a criminal complaint coupled with a claim for damages (constitution de partie civile; Articles 63 and 70). If a court includes several investigating judges, it is for the presiding judge to allocate cases amongst them. In principle, cases are assigned to them in turn, from week to week; however, this is not an inflexible rule and the presiding judge may depart therefrom, for example if the matter is urgent or if a new case has some connection with one that has already been allocated. 17. In order to facilitate the ascertainment of the truth, the investigating judge is invested with wide powers; according to the case-law of the Court of Cassation, he may "take any steps which are not forbidden by law or incompatible with the standing of his office" (judgment of 2 May 1960, Pasicrisie 1960, I, p. 1020). He can, inter alia, summon the accused to appear or issue a warrant for his detention, production before a court or arrest (Articles 91 et seq. of the Code of Criminal Procedure); question the accused, hear witnesses (Articles 71 to 86 and 92 of the same Code), confront witnesses with each other (Article 942 of the Judicial Code), visit the scene of the crime (Article 62 of the Code of Criminal Procedure), visit and search premises (Articles 87 and 88 of the same Code), take possession of evidence (Article 89), and so on. The investigating judge has to report to the chambre du conseil on the cases with which he is dealing (Article 127); he takes, by means of an order, decisions on the expediency of measures requested by the public prosecutor ’ s department, such orders being subject to an appeal to the chambre des mises en accusation of the Court of Appeal. 18. When the investigation is completed, the investigating judge transmits the case-file to the procureur du Roi, who will return it to him with his submissions (Article 61, first paragraph). It is then for the chambre du conseil, which is composed of a single judge belonging to the court of first instance (Acts of 25 October 1919, 26 July 1927 and 18 August 1928), to decide - unless it considers it should order further inquiries - whether to discharge the accused (non-lieu; Article 128 of the Code of Criminal Procedure), to commit him for trial before a district court (tribunal de police; Article 129) or a criminal court (tribunal correctionnel; Article 130) or to send the papers to the procureur général attached to the Court of Appeal (Article 133), depending upon the circumstances. Unlike his French counterpart, the Belgian investigating judge is thus never empowered to refer a case to the trial court himself. Before taking its decision, the chambre du conseil - which sits in camera - will hear the investigating judge ’ s report. This report will take the form of an oral account of the state of the investigations; the investigating judge will express no opinion therein as to the accused ’ s guilt, it being for the public prosecutor ’ s department to deliver concluding submissions calling for one decision or another. B. Investigating judges and incompatibilities 19. Article 292 of the 1967 Judicial Code prohibits "the concurrent exercise of different judicial functions ... except where otherwise provided by law"; it lays down that "any decision given by a judge who has previously dealt with the case in the exercise of some other judicial function" shall be null and void. This rule applies to investigating judges, amongst others. Article 127 specifies that "proceedings before an assize court shall be null and void if the presiding judge or another judge sitting is a judicial officer who has acted in the case as investigating judge ...". Neither can an investigating judge sit as an appeal-court judge, for otherwise he would have "to review on appeal, and thus as last-instance trial judge, the legality of investigation measures ... which [he] had taken or ordered at first instance" (Court of Cassation, 18 March 1981, Pasicrisie 1981, I, p. 770, and Revue de droit pénal et de criminologie, 1981, pp. 703-719). 20. On the other hand, under the third paragraph of Article 79 of the Judicial Code, as amended by an Act of 30 June 1976, "investigating judges may continue to sit, in accordance with their seniority, to try cases brought before a court of first instance". According to the drafting history and decided case-law on this provision, it is immaterial that the cases are ones previously investigated by the judges in question: they would in that event be exercising, not "some other judicial function" within the meaning of Article 292, but rather the same function of judge on the court of first instance; it would be only their assignment that had changed (Parliamentary Documents, House of Representatives, no. 59/49 of 1 June 1967; Court of Cassation, 8 February 1977, Pasicrisie 1977, I, p. 622-623; Court of Cassation judgment of 15 April 1980 in the present case, see paragraph 14 above). In the case of Blaise, the Court of Cassation confirmed this line of authority in its judgment of 4 April 1984, which followed the submissions presented by the public prosecutor ’ s department. After dismissing various arguments grounded on general principles of law, the Court of Cassation rejected the argument put forward by the appellant on the basis of Article 6 para. 1 (art. 6-1) of the Convention: "However, as regards the application of Article 6 para. 1 (art. 6-1) ..., when a case requires a determination of civil rights and obligations or of a criminal charge, the authority hearing the case at first instance and the procedure followed by that authority do not necessarily have to satisfy the conditions laid down by the above-mentioned provision, provided that the party concerned or the accused is able to lodge an appeal against the decision affecting him taken by that authority with a court which does offer all the guarantees stipulated by Article 6 para. 1 (art. 6-1) and has competence to review all questions of fact and of law. In the present case, the appellant does not maintain that the court of appeal which convicted him did not offer those guarantees ... In any event, the principles and the rule relied on in the ground of appeal do not have the scope therein suggested; From the sole fact that a trial judge inquired into the case as an investigating judge it cannot be inferred that the accused ’ s right to an impartial court has been violated. It cannot legitimately be feared that the said judge does not offer the guarantees of impartiality to which every accused is entitled. The investigating judge is not a party adverse to the accused, but a judge of the court of first instance with the responsibility of assembling in an impartial manner evidence in favour of as well as against the accused. ... ." PROCEEDINGS BEFORE THE COMMISSION 21. In his application of 10 October 1980 to the Commission (no. 9186/80), Mr. De Cubber raised again several of the pleas which he had unsuccessfully made to the Belgian Court of Cassation. He alleged, inter alia, that the Oudenaarde criminal court had not constituted an impartial tribunal, within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, since one of the judges, Mr. Pilate, had previously acted as investigating judge in the same case. 22. On 9 March 1982, the Commission declared the application admissible as regards this complaint and inadmissible as regards the remainder. In its report of 5 July 1983 (Article 31) (art. 31), the Commission expressed the unanimous opinion that there had been a violation of Article 6 para. 1 (art. 6-1) on the point in question. The full text of the Commission ’ s opinion is reproduced as an annex to the present judgment. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 23. Under Article 6 para. 1 (art. 6-1), "In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an ... impartial tribunal ... ." One of the three judges of the Oudenaarde criminal court who, on 29 June 1979, had given judgment on the charges against the applicant had previously acted as investigating judge in the two cases in question: in one case he had done so from the outset and in the other he had replaced a colleague, at first on a temporary and then on a permanent basis (see paragraphs 8, 10 and 12 above). On the strength of this, Mr. De Cubber contended that he had not received a hearing by an "impartial tribunal"; his argument was, in substance, upheld by the Commission. The Government disagreed. They submitted: - as their principal plea, that Mr. Pilate ’ s inclusion amongst the members of the trial court had not adversely affected the impartiality of that court and had therefore not violated Article 6 para. 1 (art. 6-1); - in the alternative, that only the Ghent Court of Appeal, whose impartiality had not been disputed, had to satisfy the requirements of that Article (art. 6-1); - in the further alternative, that a finding of violation would entail serious consequences for courts, such as the Oudenaarde criminal court, with "limited staff". A. The Government ’ s principal plea 24. In its Piersack judgment of 1 October 1982, the Court specified that impartiality can "be tested in various ways": a distinction should be drawn "between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect" (Series A no. 53, p. 14, para. 30). 25. As to the subjective approach, the applicant alleged before the Commission that Mr. Pilate had for years shown himself somewhat relentless in regard to his (the applicant ’ s) affairs (see paragraphs 45-47 of the Commission ’ s report), but his lawyer did not maintain this line of argument before the Court; the Commission, for its part, rejected the Government ’ s criticism that it had made a subjective analysis (see paragraphs 63, 68-69 and 72-73 of the report; verbatim record of the hearings held on 23 May 1984). However this may be, the personal impartiality of a judge is to be presumed until there is proof to the contrary (see the same judgment, loc. cit.), and in the present case no such proof is to be found in the evidence adduced before the Court. In particular, there is nothing to indicate that in previous cases Mr. Pilate had displayed any hostility or ill-will towards Mr. De Cubber (see paragraph 9 above) or that he had "finally arranged", for reasons extraneous to the normal rules governing the allocation of cases, to have assigned to him each of the three preliminary investigations opened in respect of the applicant in 1977 (see paragraphs 8, 10 and 16 above; paragraph 46 of the Commission ’ s report). 26. However, it is not possible for the Court to confine itself to a purely subjective test; account must also be taken of considerations relating to the functions exercised and to internal organisation (the objective approach). In this regard, even appearances may be important; in the words of the English maxim quoted in, for example, the Delcourt judgment of 17 January 1970 (Series A no. 11, p. 17, para. 31), "justice must not only be done: it must also be seen to be done". As the Belgian Court of Cassation has observed ( 21 February 1979, Pasicrisie 1979, I, p. 750), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (see the above-mentioned judgment of 1 October 1982, pp. 14-15, para. 30). 27. Application of these principles led the European Court, in its Piersack judgment, to find a violation of Article 6 para. 1 (art. 6-1): it considered that where an assize court had been presided over by a judge who had previously acted as head of the very section of the Brussels public prosecutor ’ s department which had been responsible for dealing with the accused ’ s case, the impartiality of the court "was capable of appearing open to doubt" (ibid., pp. 15-16, para. 31). Despite some similarities between the two cases, the Court is faced in the present proceedings with a different legal situation, namely the successive exercise of the functions of investigating judge and trial judge by one and the same person in one and the same case. 28. The Government put forward a series of arguments to show that this combination of functions, which was unquestionably compatible with the Judicial Code as construed in the light of its drafting history (see paragraph 20, first sub-paragraph, above), was also reconcilable with the Convention. They pointed out that in Belgium an investigating judge is fully independent in the performance of his duties; that unlike the judicial officers in the public prosecutor ’ s department, whose submissions are not binding on him, he does not have the status of a party to criminal proceedings and is not "an instrument of the prosecution"; that "the object of his activity" is not, despite Mr. De Cubber ’ s allegations, "to establish the guilt of the person he believes to be guilty" (see paragraph 44 of the Commission ’ s report), but to "assemble in an impartial manner evidence in favour of as well as against the accused", whilst maintaining "a just balance between prosecution and defence", since he "never ceases to be a judge"; that he does not take the decision whether to commit the accused for trial - he merely presents to the chambre du conseil, of which he is not a member, objective reports describing the progress and state of the preliminary investigations, without expressing any opinion of his own, even assuming he has formed one (see paragraphs 52-54 of the Commission ’ s report and the verbatim record of the hearings held on 23 May 1984). 29. This reasoning no doubt reflects several aspects of the reality of the situation (see paragraphs 15, first sub-paragraph, 17 in fine and 18 above) and the Court recognises its cogency. Nonetheless, it is not in itself decisive and there are various other factors telling in favour of the opposite conclusion. To begin with, a close examination of the statutory texts shows the distinction between judicial officers in the public prosecutor ’ s department and investigating judges to be less clear-cut than initially appears. An investigating judge, like" procureurs du Roi and their deputies", has the status of officer of the criminal investigation police and, as such, is "placed under the supervision of the procureur général "; furthermore, "an investigating judge" may, in cases "where the suspected offender is deemed to have been caught in the act", "take directly" and in person "any action which the procureur du Roi is empowered to take" (see paragraph 15, second sub-paragraph, above). In addition to this, as an investigating judge he has very wide-ranging powers: he can "take any steps which are not forbidden by law or incompatible with the standing of his office" (see paragraph 17 above). Save as regards the warrant of arrest issued against the applicant on 5 April 1977, the Court has only limited information as to the measures taken by Mr. Pilate in the circumstances, but, to judge by the complexity of the case and the duration of the preparatory investigation, they must have been quite extensive (see paragraphs 8 and 12 above). That is not all. Under Belgian law the preparatory investigation, which is inquisitorial in nature, is secret and is not conducted in the presence of both parties; in this respect it differs from the procedure of investigation followed at the hearing before the trial court, which, in the instant case, took place on 8 and 22 June 1979 before the Oudenaarde court (see paragraphs 12 and 15 above). One can accordingly understand that an accused might feel some unease should he see on the bench of the court called upon to determine the charge against him the judge who had ordered him to be placed in detention on remand and who had interrogated him on numerous occasions during the preparatory investigation, albeit with questions dictated by a concern to ascertain the truth. Furthermore, through the various means of inquiry which he will have utilised at the investigation stage, the judge in question, unlike his colleagues, will already have acquired well before the hearing a particularly detailed knowledge of the - sometimes voluminous - file or files which he has assembled. Consequently, it is quite conceivable that he might, in the eyes of the accused, appear, firstly, to be in a position enabling him to play a crucial role in the trial court and, secondly, even to have a pre-formed opinion which is liable to weigh heavily in the balance at the moment of the decision. In addition, the criminal court (tribunal correctionnel ) may, like the court of appeal (see paragraph 19 in fine above), have to review the lawfulness of measures taken or ordered by the investigating judge. The accused may view with some alarm the prospect of the investigating judge being actively involved in this process of review. Finally, the Court notes that a judicial officer who has "acted in the case as investigating judge" may not, under the terms of Article 127 of the Judicial Code, preside over or participate as judge in proceedings before an assize court; nor, as the Court of Cassation has held, may he sit as an appeal-court judge (see paragraph 19 above). Belgian law-makers and case-law have thereby manifested their concern to make assize courts and appeal courts free of any legitimate suspicion of partiality. However, similar considerations apply to courts of first instance. 30. In conclusion, the impartiality of the Oudenaarde court was capable of appearing to the applicant to be open to doubt. Although the Court itself has no reason to doubt the impartiality of the member of the judiciary who had conducted the preliminary investigation (see paragraph 25 above), it recognises, having regard to the various factors discussed above, that his presence on the bench provided grounds for some legitimate misgivings on the applicant ’ s part. Without underestimating the force of the Government ’ s arguments and without adopting a subjective approach (see paragraphs 25 and 28 above), the Court recalls that a restrictive interpretation of Article 6 para. 1 (art. 6-1) - notably in regard to observance of the fundamental principle of the impartiality of the courts - would not be consonant with the object and purpose of the provision, bearing in mind the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention (see the above-mentioned Delcourt judgment, Series A no. 11, pp. 14-15, para. 25 in fine). B. The Government ’ s first alternative plea 31. In the alternative, the Government submitted, at the hearings on 23 May 1984, that the Court should not disregard its previous case-law; they relied essentially on the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981 and on the Albert and Le Compte judgment of 10 February 1983. In both of these judgments, the Court held that proceedings instituted against the applicants before the disciplinary organs of the Ordre des médecins (Medical Association) gave rise to a "contestation" (dispute) over "civil rights and obligations" (Series A no. 43, pp. 20-22, paras. 44-49, and Series A no. 58, pp. 14-16, paras. 27-28). Since Article 6 para. 1 (art. 6-1) was therefore applicable, it had to be determined whether the individuals concerned had received a hearing by a "tribunal" satisfying the conditions which that Article lays down. Their cases had been dealt with by three bodies, namely a Provincial Council, an Appeals Council and the Court of Cassation. The European Court did not consider it "indispensable to pursue this point" as regards the Provincial Council, for the reason which, in its judgment of 23 June 1981, was expressed in the following terms: "Whilst Article 6 para. 1 (art. 6-1) embodies the ‘ right to a court ’ ..., it nevertheless does not oblige the Contracting States to submit ‘ contestations ’ (disputes) over ‘ civil rights and obligations ’ to a procedure conducted at each of its stages before ‘ tribunals ’ meeting the Article ’ s various requirements. Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect; the legal tradition of many member States of the Council of Europe may be invoked in support of such a system." (Series A no. 43, pp. 22-23, paras. 50-51) The judgment of 10 February 1983 developed this reasoning further: "In many member States of the Council of Europe, the duty of adjudicating on disciplinary offences is conferred on jurisdictional organs of professional associations. Even in instances where Article 6 para. 1 (art. 6-1) is applicable, conferring powers in this manner does not in itself infringe the Convention.... Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6 para. 1 (art. 6-1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction" - that is to say, which has the competence to furnish "a [judicial] determination ... of the matters in dispute, both for questions of fact and for questions of law" - "and does provide the guarantees of Article 6 para. 1 (art. 6-1)." (Series A no. 58, p. 16, para. 29) In the Government ’ s submission, the principles thus stated apply equally to "criminal charges" within the meaning of Article 6 para. 1 (art. 6-1). As confirmation of this, the Government cited the Oztürk judgment of 21 February 1984 (Series A no. 73, pp. 21-22, para. 56) in addition to the above-mentioned judgments of 23 June 1981 and 10 February 1983 (Series A no. 43, pp. 23-24, para. 53, and Series A no. 58, pp. 16-17, para. 30). In the particular circumstances, the Government noted, Mr. De Cubber ’ s complaint was directed solely against the Oudenaarde court; he had no objection to make concerning the Ghent Court of Appeal, which in the present case, so they argued, constituted the "judicial body that has full jurisdiction", as referred to in the above-quoted case-law. On the whole of this issue, the Government cited the Blaise judgment of 4 April 1984, which the Belgian Court of Cassation had delivered in a similar case, and the concordant submissions of the public prosecutor ’ s department in that case (see paragraph 20 above). 32. The Commission ’ s Delegate did not share this view; the Court agrees in substance with his arguments. The thrust of the plea summarised above is that the proceedings before the Oudenaarde court fell outside the ambit of 1Article 6 para. 1 (art. 6-1). At first sight, this plea contains an element of paradox. Article 6 para. 1 (art. 6-1) concerns primarily courts of first instance; it does not require the existence of courts of further instance. It is true that its fundamental guarantees, including impartiality, must also be provided by any courts of appeal or courts of cassation which a Contracting State may have chosen to set up (see the above-mentioned Delcourt judgment, Series A no. 11, p. 14 in fine, and, as the most recent authority, the Sutter judgment of 22 February 1984, Series A no. 74, p. 13, para. 28). However, even when this is the case it does not follow that the lower courts do not have to provide the required guarantees. Such a result would be at variance with the intention underlying the creation of several levels of courts, namely to reinforce the protection afforded to litigants. Furthermore, the case-law relied on by the Government has to be viewed in its proper context. The judgments of 23 June 1981, 10 February 1983 and 21 February 1984 concerned litigation which was classified by the domestic law of the respondent State not as civil or criminal but as disciplinary (Series A no. 43, p. 9, para. 11) or administrative (Series A no. 73, pp. 10-14, paras. 17-33); these judgments related to bodies which, within the national system, were not regarded as courts of the classic kind, for the reason that they were not integrated within the standard judicial machinery of the country. The Court would not have held Article 6 para. 1 (art. 6-1) applicable had it not been for the "autonomy" of the concepts of "civil rights and obligations" and "criminal charge". In the present case, on the other hand, what was involved was a trial which not only the Convention but also Belgian law classified as criminal; the Oudenaarde criminal court was neither an administrative or professional authority, nor a jurisdictional organ of a professional association (see the above-mentioned judgments, Series A no. 43, p. 23, para. 51, Series A no. 58, p. 16, para. 29, and Series A no. 73, pp. 21-22, para. 56), but a proper court in both the formal and the substantive meaning of the term (Decisions and Reports, no. 15, p. 78, paras. 59-60, and p. 87: opinion of the Commission and decision of the Committee of Ministers on application no. 7360/76, Zand v. Austria). The reasoning adopted in the three above-mentioned judgments, to which should be added the Campbell and Fell judgment of 28 June 1984 (Series A no. 80, pp. 34-39, paras. 67-73 and 76), cannot justify reducing the requirements of Article 6 para. 1 (art. 6-1) in its traditional and natural sphere of application. A restrictive interpretation of this kind would not be consonant with the object and purpose of Article 6 para. 1 (art. 6-1) (see paragraph 30 in fine above). 33. At the hearings, the Commission ’ s Delegate and the applicant ’ s lawyer raised a further question, concerning not the applicability of Article 6 para. 1 (art. 6-1) but rather its application to the particular facts: had not "the subsequent intervention" of the Ghent Court of Appeal "made good the wrong" or "purged" the first-instance proceedings of the "defect" that vitiated them? The Court considers it appropriate to answer this point although the Government themselves did not raise the issue in such terms. The possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for an initial violation of one of the Convention ’ s provisions: this is precisely the reason for the existence of the rule of exhaustion of domestic remedies, contained in Article 26 (art. 26) (see the Guzzardi and the Van Oosterwijck judgments of 6 November 1980, Series A no. 39, p. 27, para. 72, and Series A no. 40, p. 17, para. 34). Thus, the Adolf judgment of 26 March 1982 noted that the Austrian Supreme Court had "cleared ... of any finding of guilt" an applicant in respect of whom a District Court had not respected the principle of presumption of innocence laid down by Article 6 para. 2 (art. 6-2) (Series A no. 49, pp. 17-19, paras. 38-41). The circumstances of the present case, however, were different. The particular defect in question did not bear solely upon the conduct of the first-instance proceedings: its source being the very composition of the Oudenaarde criminal court, the defect involved matters of internal organisation and the Court of Appeal did not cure that defect since it did not quash on that ground the judgment of 29 June 1979 in its entirety. C. The Government ’ s further alternative plea 34. In the further alternative, the Government pleaded that a finding by the Court of a violation of Article 6 para. 1 (art. 6-1) would entail serious consequences for Belgian courts with "limited staff", especially if it were to give a judgment "on the general question of principle" rather than a judgment "with reasoning limited to the very special" facts of the case. In this connection, the Government drew attention to the following matters. From 1970 to 1984, the workload of such courts had more than doubled, whereas there had been no increase in the number of judges. At Oudenaarde and at Nivelles, for example, taking account of vacant posts (deaths, resignations, promotions) and occasional absences (holidays, illness, etc.), there were only six or seven judges permanently in attendance, all of whom were "very busy", if not overwhelmed with work. Accordingly, it was virtually inevitable that one of the judges had to deal in turn with different aspects of the same case. To avoid this, it would be necessary either to constitute "special benches" - which would be liable to occasion delays incompatible with the principle of trial "within a reasonable time" - or to create additional posts, an alternative that was scarcely realistic in times of budgetary stringency. 35. The Court recalls that the Contracting States are under the obligation to organise their legal systems "so as to ensure compliance with the requirements of Article 6 para. 1 (art. 6-1)" (see the Guincho judgment of 10 July 1984, Series A no. 81, p. 16, para. 38); impartiality is unquestionably one of the foremost of those requirements. The Court ’ s task is to determine whether the Contracting States have achieved the result called for by the Convention, not to indicate the particular means to be utilised. D. Conclusion 36. To sum up, Mr. De Cubber was the victim of a breach of Article 6 para. 1 (art. 6-1). II. THE APPLICATION OF ARTICLE 50 (art. 50) 37. The applicant has filed claims for just satisfaction in respect of pecuniary and non-pecuniary damage, but the Government have not yet submitted their observations thereon. Since the question is thus not ready for decision, it is necessary to reserve it and to fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicant (Rule 53 paras. 1 and 4 of the Rules of Court). | The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the impartiality of the criminal court was capable of appearing to the applicant to be open to doubt. Although the Court itself had no reason to doubt the impartiality of the member of the judiciary who had conducted the preliminary investigation, it recognised that his presence on the bench provided grounds for some legitimate misgivings on the applicant’s part. In the present case, the Court recalled that a restrictive interpretation of Article 6 § 1, notably in regard to observance of the fundamental principle of the impartiality of the courts, would not be consonant with the object and purpose of the provision, bearing in mind the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention. |
809 | Legal capacity | II. RELEVANT DOMESTIC LAW A. The Constitution 26. Article 9, paragraph 1, of the Finnish Constitution ( Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides the following: “Finnish citizens and foreigners legally resident in Finland have the right to move freely within the country and to choose their place of residence.” B. The Guardianship Services Act 27. Section 1 of the Guardianship Services Act ( laki holhoustoimesta, lagen om förmyndarverksamhet, Act no. 442/1999) provides the following: “The objective of guardianship services is to look after the rights and interests of persons who cannot themselves take care of their financial affairs owing to incompetence, illness, absence or another reason. If the interests of someone in respect of a non-financial affair need to be looked after, this shall be a task for guardianship services in so far as provided below.” 28. Section 8 of the Act sets out the basic provisions concerning the appointment of deputies: “ If an adult, owing to illness, disturbed mental faculties, diminished health or another comparable reason, is incapable of looking after his/her interests or taking care of personal or financial affairs in need of management, a court may appoint a mentor for him/her. Where necessary, a guardianship authority shall file a petition with a district court for the appointment of the mentor. The mentor may be appointed if the person whose interests need to be looked after does not object to the same. If he/she objects to the appointment of the mentor, the appointment may nonetheless be made if, taking into account his/her state and need for a mentor, there is no sufficient reason for the objection. The task of the mentor may be restricted to cover only a given transaction or property. ” 29. Section 14 makes it clear that the appointment of a mentor does not deprive the ward of his or her legal capacity: “ The appointment of a mentor shall not disqualify the ward from administering his/her property or entering into transactions, unless otherwise provided elsewhere in the law. ” 30. Section 29, subsections 1 and 2, of the Act govern the powers of a mentor : “ The mentor shall be competent to represent the ward in transactions pertaining to the ward ’ s property and financial affairs, unless the appointing court has otherwise ordered or unless it has been otherwise provided elsewhere in the law. If the court has so ordered, the mentor shall be competent to represent the ward also in matters pertaining to his/her person, if the ward cannot understand the significance of the matter. However, the mentor shall not have such competence in matters subject to provisions to the contrary elsewhere in the law. ” 31. Under section 42 of the Act, “[a] mentor appointed for an adult shall see to it that the ward is provided with the treatment, care and therapy ... deemed appropriate in view of the ward ’ s need of care and other circumstances, as well as the ward ’ s wishes.” 32. Section 43, subsections 1 and 2, of the Act provide that “[b]efore the mentor makes a decision in a matter falling within his or her remit, he or she shall ask for the opinion of the ward if the matter is deemed important from the ward ’ s point of view and if a hearing can be arranged without considerable inconvenience. However, no hearing shall be necessary if the ward cannot understand the significance of the matter.” 33. According to the travaux préparatoires to the Guardianship Services Act (LaVM 20/1998 vp and HaVL 19/1998 vp), the most central substantive principle of the Act is that of respect for human dignity. This means that any decision on the protection of a person with deficient functional ability ( “ the ward ” ) must be based on the inviolability of human and basic rights and liberties. Preference is to be given to the ward ’ s interests and to the need to safeguard the ward ’ s opportunities to participate in the decision-making concerning him or her. The principle of respect for human dignity is supplemented by the principles of necessity and proportionality. The principle of necessity means that the ward must be permitted to maintain his or her legal competence as extensively as possible, and that that competence can be restricted only to the extent necessary to protect the ward. The principle of proportionality means that the measures to protect the ward must be determined on a case-by-case basis and according to the need for such protection. On the other hand, it may be necessary to restrict the right of self-determination of the ward in certain situations in order to protect his or her own interests. Thus, a balance must be struck between the need for protection and the right of self-determination. C. The Act on the status and rights of social welfare clients 34. A social welfare client ’ s rights and obligations are defined in Chapter 2 of the Act on the status and rights of social welfare clients ( laki sosiaalihuollon asiakkaan asemasta ja oikeuksista, lagen om klientens ställning och rättigheter inom socialvården, Act no. 812/2000). According to section 4 of the Act, a client has a right to receive from the service provider social welfare services of good quality and good non-discriminatory treatment. A client must be served in such a manner that his or her human dignity is not violated and his or her convictions and privacy are respected. When providing social welfare services, the client ’ s wishes, opinions, interests and personal needs must be taken into account, as well as his or her mother tongue and cultural background. 35. Section 5 of the same Act provides that the social welfare authorities must explain the client his or her rights and obligations, the different options available and their effects as well as other factors that may have relevance in his or her matter. This explanation must be given in such a manner that the client sufficiently understands its content and significance. If the social welfare staff does not master the language the client uses, or if the client cannot make him- or herself understood due to a sensory or speech impediment or for some other reason, the staff must take care of interpretation and obtaining of an interpreter. 36. According to section 7 of the same Act, a service, treatment, rehabilitation or a similar plan must be drawn for the client, unless he or she only needs occasional advice or guidance, or if the drawing of such a plan is otherwise manifestly unnecessary. Unless there are evident obstacles, the plan must be drawn in agreement with the client, the client and his or her legal mentor, or with the client and his or her next-of-kin or close relative. The content of the plan and the parties to the matter are subject to specific regulation. 37. Section 8, subsection 1, of the Act provides that, when providing social welfare services, the authorities must primarily take into account the wishes and opinions of the client, and also otherwise respect his or her right to self-determination. 38. According to section 9 of the Act, if an adult client cannot, due to an illness, diminished mental capacity or for other similar reason, participate or contribute to the planning of services or other measures or in their realisation, or to understand the nature of proposed alternatives or the consequences of decisions taken, the client ’ s will must be clarified in cooperation with his or her legal mentor, next-of-kin or other close person. If an adult person is, in a matter pertaining to his or her person or property, in an apparent need of mentoring, relevant authorities must be contacted in order to have a mentor appointed to the client. III. RELEVANT INTERNATIONAL MATERIALS A. United Nations 1. United Nations Convention on the Rights of Persons with disabilities 39. In December 2006 the United Nations Convention on the Rights of Persons with Disabilities (hereinafter “the UNCRPD”) was adopted. It entered into force internationally in May 2008. By the end of September 2016, 44 out of the 47 Council of Europe member States have ratified the Convention. It has also been ratified by the European Union. Finland ratified the Convention in 2016 and it entered into force on 10 June 2016 (the ratification was based on Government Bill HE 284/2014 vp., from which it transpires that it was considered that there was no need or cause to amend the current relevant Finnish legislation). 40. Article 12 of the Convention is entitled “Equal recognition before the law” and provides the following: “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person ’ s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person ’ s rights and interests. 5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.” 41. Article 16 of the Convention is entitled “Freedom from exploitation, violence and abuse” and provides the following: 1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects. 2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognise and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive. 3. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities. 4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs. 5. States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.” 2. UN Committee on the Rights of Persons with Disabilities 42. In 2014 the United Nations Committee on the Rights of Persons with Disabilities adopted its General Comment No. 1 concerning Article 12 of the UNCRPD, i.e. equal recognition before the law. 43. The Committee considers that States parties must “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person ’ s autonomy, will and preferences” (§ 26). 44. In this context, the Committee defines substitute decision-making regimes as systems where (i) legal capacity is removed from a person, even if this is in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will; and (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective “best interests” of the person concerned, as opposed to being based on the person ’ s own will and preferences (§ 27). 45. The Committee considers that the States parties ’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with Article 12 of the Convention (§ 28). B. Council of Europe 46. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles read as follows: Principle 2 – Flexibility in legal response “1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal responses to be made to different degrees of incapacity and various situations. ... 4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.” Principle 3 – Maximum reservation of capacity “1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned. 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...” Principle 6 – Proportionality “1. Where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned. 2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...” Principle 13 – Right to be heard in person “The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.” Principle 14 – Duration review and appeal “1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. ... 3. There should be adequate rights of appeal.” 47. On 2 February 2005 the Committee of Ministers adopted a Resolution on safeguarding adults and children with disabilities against abuse, ResAP(2005)1, the relevant parts of which read as follows: “I. Definition of abuse 1. In this Resolution abuse is defined as any act, or failure to act, which results in a breach of a vulnerable person ’ s human rights, civil liberties, physical and mental integrity, dignity or general well-being, whether intended or through negligence, including sexual relationships or financial transactions to which the person does not or cannot validly consent, or which are deliberately exploitative. ... 3. These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term ‘ abuse ’ therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 49. The applicant complained under Article 8 of the Convention that, following his decision to move to the North of Finland in order to live with his former foster parents, the powers of his mentor had been enlarged to encompass matters pertaining to his person. His wishes had not been respected and it had been impossible to have his mentor replaced in matters concerning his place of residence and his education, even though he had lost confidence in her. All these measures violated his right to respect for private and family life. 50. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 51. The Government contested that argument. A. Admissibility 52. The Government raised several preliminary objections in their observations. First of all, they noted that the applicant had lived for one year in Northern Finland but had been back in his home town for more than eight and a half years. He had not raised the idea of moving away from his home town for a long time. There was no guarantee that a change of mentor would have led to a different outcome as far as the applicant ’ s place of residence was concerned since another mentor would also have been obliged to safeguard his best interests. The applicant ’ s allegation was thus purely hypothetical. Therefore the applicant could not, at least any longer, be considered as a victim within the meaning of Article 34 of the Convention. His complaint was thus incompatible ratione materiae with the provisions of the Convention or the Protocols thereto, and should be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention. 53. Secondly, the Government argued that the applicant had failed to substantiate any disadvantage he had allegedly suffered as a result of the alleged violation. Therefore this complaint should be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention. 54. Thirdly, the Government argued that the applicant had failed to exhaust the domestic remedies available to him in respect of the decision to place him back in his home town on 31 July 2007. Nor had he challenged the decisions of 4 November 2008 and 18 June 2009 respectively to appoint a mentor for him. Therefore, this complaint should be declared inadmissible for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention. 55. In any case, the Government maintained that this complaint had been lodged with the Court more than six months after the alleged violations had taken place in respect of the decisions of 31 July 2007, 4 November 2008 and 18 June 2009. It should therefore be declared inadmissible under Article 35 §§ 1 and 4 of the Convention. 56. The applicant maintained that he was still a victim. He had been forced to remain in his home town for the past nine years against his own will. This situation could not be justified by reference to the fact that it had continued for several years. He had repeatedly told his lawyer that he wanted to move and live with his former foster mother since she was like a mother to him. It was true that another mentor might have also refused the applicant permission to move but that was unlikely. The applicant was still a victim as he still had the same mentor. 57. The applicant claimed that it was also evident that he had suffered a significant disadvantage. Nothing could bring back the years of lost shared life with his former foster mother. He should be allowed to live wherever he wanted; this was a matter of basic human rights. There were always welfare services available and persons to look after him wherever he lived. 58. The applicant claimed that it had been impossible for him to exhaust the domestic remedies concerning the decisions referred to in the Government ’ s preliminary objection since he had been without any legal assistance during the years 2007 to 2009. He could not have exhausted those remedies by himself. However, concerning the impugned proceedings, his complaint had been lodged with the Court within the six-month time-limit and was thus admissible. 59. The Court notes that the parties disagree as to whether the applicant can still be regarded as a victim. Although the applicant has lived for more than nine years back in his home town, he has continued to express his wish to live with his former foster mother. Since neither the applicant ’ s mentor nor his position has changed, he must still be regarded as a victim within the meaning of Article 34 of the Convention. Nor does the Court consider that the applicant has, taking into account the subject matter and the circumstances of his complaint, failed to substantiate any significant disadvantage in connection with the present case. 60. Furthermore, the Government argued that the applicant had failed to exhaust the domestic remedies available to him in respect of the decisions of 31 July 2007, 4 November 2008 and 18 June 2009 respectively. However, none of these decisions is the subject of the present application, which only concerns the proceedings initiated by the applicant on 8 April 2011 requesting the District Court to discharge the mentor appointed to him from her duties as far as his place of residence and education were concerned. For the same reason, the Government ’ s objection concerning the six-month time-limit is not relevant since it does not concern the impugned proceedings. The Court notes that the Government have not even argued that the applicant ’ s complaint relating to the impugned proceedings was lodged with the Court too late. 61. Accordingly, the Court rejects the Government ’ s preliminary objections and notes that the applicant ’ s complaint under Article 8 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 62. The applicant pointed out that he had not denied his need for a mentor as he understood that a having one would protect him from serious harm. That did not mean, however, that any authority should be entitled to prevent him from moving to another municipality, because such a move would not bring him into danger. Under the travaux préparatoires to the Guardianship Services Act, primacy was to be given to the ward ’ s interests and to safeguarding his or her opportunities to participate in decision-making. 63. The case concerned the question of the applicant ’ s right to respect for his private and family life and there had been a clear interference with these rights in the present case. This interference had not been necessary in a democratic society since it had been contrary to the ideas of equality and democracy. There had thus been a violation of Article 8 of the Convention. (b) The Government 64. The Government noted that the applicant had not denied his need for a mentor. It was inherent in the nature of the powers given to the mentor that he was not bound by the expressions of will of the ward but had to make all decisions in the interests of the ward. Otherwise such an appointment would be pointless. The partial dismissal of the applicant ’ s mentor would not be decisive for his right to respect for private life or family life. Therefore, no real interference with the applicant ’ s Article 8 rights had taken place. 65. Were the Court to have a different opinion, then any alleged interference would in any case have a basis in Finnish law, in particular under sections 8, 29, 37, 42 and 43 of the Guardianship Services Act, and pursue the legitimate aims of protecting the health of the applicant, as well as the rights and freedoms of others. The alleged interference was also necessary in a democratic society, taking into account the wide margin of appreciation accorded to the States. There was thus no violation of Article 8 of the Convention. (c) The third party submissions 66. The Mental Disability Advocacy Centre noted that States were required to ensure that the will and preferences of persons with disabilities were respected at all times and could not be overridden or ignored by paternalistic “best interests ” decision-making. The will and preferences expressed by persons with disabilities in respect of their family relationships and their right to choose their place of residence had to be respected and protected as these issues were an inherent part of a person ’ s autonomy, independence, dignity and self-development and central to a person ’ s independent living in a wider community. In order to ensure that persons with disabilities were both protected from violations and that they had the ability to obtain effective remedies when violations occurred, States had a positive obligation to apply stringent and effective safeguards in order to ensure that their rights to exercise legal capacity were “practical and effective” rather than “theoretical and illusory”. 67. The starting point, based on the current international standards, was that the will and preferences of a person with disabilities should take precedence over other considerations when it came to decisions affecting that person. This was clear from the text of the United Nations Convention on the Rights of Persons with Disabilities. Even in jurisdictions with a former reliance on the “ best interests ” approach, there was an emerging trend towards placing more emphasis on the will and preferences of the person. There was a clear move from a “ best-interests ” model to a “ supported decision-making ” approach. 68. The Centre noted that the Court had held on a number of occasions that guardianship systems constituted a very serious interference with a person ’ s Article 8 rights. Article 8 § 2 of the Convention needed to be interpreted in a manner consistent with international standards, taking into account the international recognition of the importance of autonomy and supported decision-making for individuals with disabilities. Rights guaranteed in Article 2 of Protocol No. 4 to the Convention were closely intertwined with those of Article 8. Circumstances in which an interference would be justified were limited and had to be restrictively construed. Persons with disabilities needed to be able to choose where and with whom to live, and had to be given the opportunity to live independently in the community on the basis of their own choice and, on an equal basis with others. 2. The Court ’ s assessment (a) Preliminary remarks 69. The Court observes that the main issue in the present case concerns the refusal of the domestic authorities to allow a partial change in the applicant ’ s mentor arrangements, requested with a view to permitting the applicant to decide for himself where and with whom to live. The Court must consider this matter in the light of the general principles governing interferences by State authorities in the private and family life of individuals guaranteed under Article 8 of the Convention, taking into account the principles governing the State ’ s positive obligations, especially those relating to the protection of particularly vulnerable persons. The Court notes that the applicant has not lodged a complaint under Article 14 of the Convention. However, due to the nature and scope of the applicant ’ s complaint under Article 8, lodged by an intellectually disabled young man, the Court considers that within the particular context of its examination regard must be had to the requirement of non-discrimination, bearing in mind that discriminatory treatment can consist of treating differently persons in relevantly comparable situations without an objective and reasonable justification, or of failing to make, without objective and reasonable justification, differentiations between persons whose situations are not relevantly comparable (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV). ( b ) Recapitulation of general principles 70. The Court reiterates that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. Any interference in the rights protected under this Article must, in order to be permissible, satisfy the conditions set out in paragraph 2 of Article 8 in terms of lawfulness and necessity, including the requirements of legitimate aim and proportionality. 71. However, Article 8 does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia, Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013; and Airey v. Ireland, 9 October 1979, § 32, Series A no. 32 ). The principles applicable to assessing a State ’ s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests, the aims in the second paragraph of Article 8 being of a certain relevance (see Hämäläinen v. Finland [GC], no. 37359/09, § 65, ECHR 2014; and Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 165, ECHR 2016 ). The positive obligations may also require measures designed to provide special protection to persons who are in a particularly vulnerable position (see, for example, Paposhvili v. Belgium [GC], no. 41738/10, § 221, ECHR 2016). 72. The applicant ’ s complaint concerns a situation where, in the context of the freedom of choice regarding his place of residence, the applicant was put in a position different from others as, due to his intellectual disability, his right of self-determination was restricted through the powers conferred on his mentor. As regards this aspect of the case, the Court recalls that discrimination means treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV; and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). 73. The Court further recalls its findings to the effect that where a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State ’ s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (see Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011 ). The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010 ). In the past, the Court has identified a number of such vulnerable groups that suffered different treatment on account of their sex (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94; and Burghartz v. Switzerland, 22 February 1994, § 27, Series A no. 280 ‑ B ), sexual orientation (see Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010; and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999 ‑ VI), race or ethnicity (see D.H. and Others, cited above, § 182; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005 ‑ XII), mental faculties (see Alajos Kiss, cited above, § 42; and, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 95, ECHR 2008), or disability (see Glor v. Switzerland, no. 13444/04, § 84, ECHR 2009 ). 74. Furthermore, the Court reiterates its consistent practice according to which the Court takes into account relevant international instruments and reports in order to interpret the guarantees of the Convention and to establish whether there is a common standard in the field concerned. It is for the Court to decide which international instruments and reports it considers relevant and how much weight to attribute to them (see Tănase v. Moldova [GC], no. 7/08, § 176, ECHR 2010; and Demir and Baykara v. Turkey [GC], no. 34503/97, § § 85-86, ECHR 2008). In the present case, the Court considers relevant the United Nations Convention on the Rights of Persons with disabilities (see paragraphs 3 9 - 4 1 above), having also regard to the interpretation given by the UN Committee (see paragraphs 42-45 above), as well as the related recommendations, resolutions and strategy statements adopted by the Council of Europe bodies (see paragraphs 4 6 - 48 above). (c) Whether there was an interference 75. The Court notes that the parties disagree on whether there was an interference with the applicant ’ s rights under Article 8 of the Convention. 76. The Court observes that the present case concerns primarily the private life aspect of Article 8 rather than the family life aspect. Article 8 “secure[s] to the individual a sphere within which he can freely pursue the development and fulfilment of his personality” (see Brüggemann and Scheuten v. Germany, no. 6959/75, Commission ’ s report of 12 July 1977, Decisions and Reports 10, p. 115, § 55; and Shtukaturov, cited above, § 83 ). Article 8 concerns rights of central importance to the individual ’ s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see Connors v. the United Kingdom, no. 66746/01, § 82, 27 May 2004; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002 ‑ III; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002 ‑ VI; and, mutatis mutandis, Gillow v. the United Kingdom, 24 November 1986, § 55, Series A no. 109 ). 77. In the present case, a mentor had been appointed to the applicant soon after he had reached the age of 18, i.e. prior to the impugned proceedings (see paragraphs 10 and 13 above), and he has not contested or complained about these decisions, nor does he deny the need for a mentor. The applicant ’ s complaint, in essence, is directed at the fact that by their decisions in the impugned proceedings, the domestic courts refused to change the mentor arrangements as a result of which the applicant was restrained from deciding for himself where and with whom to live. The Court therefore considers that there has been an interference with the applicant ’ s right to respect for his private life under Article 8 of the Convention. (d) Whether the interference was in accordance with the law and pursued a legitimate aim 78. To comply with Article 8 § 2 of the Convention, the interference in issue must have been imposed “in accordance with the law” and pursue a legitimate aim enumerated in Article 8 § 2 of the Convention. 79. The Court notes that, according to the Government, the interference had a basis in Finnish law, in particular in sections 8, 29, 37, 42 and 43 of the Guardianship Services Act, and that it pursued the legitimate aims of protecting the health of the applicant, as well as the rights and freedoms of others. The applicant did not dispute this. 80. The Court agrees with the parties that the interference in question had a legal basis in the provisions of the Guardianship Services Act and considers that the quality of that law is not at issue. Moreover, the legitimate aim of this Act, as expressed in its section 1, is to protect the rights and interests of persons who cannot themselves take care of their financial or non-financial affairs owing to incapacity, illness, absence or another reason. The interference was thus clearly justified by the legitimate aim of protecting the health, interpreted in the broader context of well-being, of the applicant. (e) Whether the interference was necessary in a democratic society 81. Under Article 8, an interference will be considered “necessary in a democratic society” in respect of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation of whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady, cited above, § 88 ). 82. As regards the legal position underlying the applicant ’ s case, namely that there was a measure in place under which the mentor was required not to abide by the applicant ’ s wishes and instead to give precedence to his best interests, if and where the applicant was deemed unable to understand the significance of a specific matter, the Court recalls that in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it. In accordance with the principle of subsidiarity, the quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation (see, mutatis mutandis, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)). 83. A margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions (see Maurice v. France [GC], no. 11810/03, § 117, ECHR 2005 ‑ IX). This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual ’ s effective enjoyment of intimate or key rights (see, for example, Parrillo v. Italy [GC], no. 46470/11, § 169, ECHR 2015; and Dubská and Krejzová, cited above, § 178 ). As noted in paragraph 73 above, the margin is also reduced where a particularly vulnerable group is subjected to differential treatment on grounds that are not specifically linked to relevant individual circumstances. 84. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Connors, cited above, § 83; Buckley, cited above, § 76; and Chapman v. the United Kingdom [GC], no. 27238/95, § 92, ECHR 2001 ‑ I ). 85. Turning to the present case, the Court notes that under Finnish law, the appointment of a mentor does not entail a deprivation or restriction of the legal capacity of the person for whom the mentor is designated (see paragraph 2 9 above). The powers of the mentor to represent the ward cover the latter ’ s property and financial affairs to the extent set out in the appointing court ’ s order, but these powers do not exclude the ward ’ s capacity to act for him - or herself. If, like in the present case, the court has specifically ordered that the mentor ’ s function shall also cover matters pertaining to the ward ’ s person, the mentor is competent to represent the ward in such a matter only where the latter is unable to understand its significance (see paragraph 30 above). In a context such as the present one, the interference with the applicant ’ s freedom to choose where and with whom to live that resulted from the appointment and retention of a mentor for him was therefore solely contingent on the determination that the applicant was unable to understand the significance of that particular issue. This determination in turn depended on the assessment of the applicant ’ s intellectual capacity in conjunction with and in relation to all the aspects of that specific issue. The Court also notes that Finland, having recently ratified the UNCRPD, has done so while expressly considering that there was no need or cause to amend the current legislation in these respects (see Government Bill HE 284/2014 vp., p. 45). 86. The Court further observes that, as regards the impugned proceedings, the domestic courts, having considered expert testimony and having heard the applicant in person as well as several witnesses, concluded that the applicant was clearly unable to understand the significance of the underlying issue of the proceedings, namely the plan move to a remote place in order to live with his former foster parents. In reaching this conclusion, the courts took into account the evidence relating to the applicant ’ s intellectual capacity as well as the evidence relating to the applicant ’ s present and prospective circumstances in the case of a move. In this context, the domestic courts also expressed some doubts as to whether the plan actually represented the applicant ’ s own genuine will. 87. The Court recalls, as it has held in various contexts, that where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see, among others, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179-80, 24 March 2011). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts ( ibid ). 88. In the present case, the Court sees no reason to call into question the factual findings of the domestic courts. In this regard, the Court takes note, in particular, of the fact that according to the expert evidence, the applicant ’ s decision-making skills had been assessed as corresponding to those of a child between six and nine years of age. The Court also observes that it is apparent from the factual circumstances and the findings of the domestic courts that, apart from the fact that the former foster parents were well known and close to the applicant, the plan to move to a remote and isolated place in the North of Finland would have entailed a radical change in the applicant ’ s living conditions (see paragraph 17 above). 89. In the light of the above mentioned findings, the Court is satisfied that the impugned decision was taken in the context of a mentor arrangement that had been based on, and tailored to, the specific individual circumstances of the applicant, and that the impugned decision was reached on the basis of a concrete and careful consideration of all the relevant aspects of the particular situation. In essence, the decision was not based on a qualification of the applicant as a person with a disability. Instead, the decision was based on the finding that, in this particular case, the disability was of a kind that, in terms of its effects on the applicant ’ s cognitive skills, rendered the applicant unable to adequately understand the significance and the implications of the specific decision he wished to take, and that therefore, the applicant ’ s well-being and interests required that the mentor arrangement be maintained. 90. The Court is mindful of the need for the domestic authorities to reach, in each particular case, a balance between the respect for the dignity and self-determination of the individual and the need to protect the individual and safeguard his or her interests, especially under circumstances where his or her individual qualities or situation place the person in a particularly vulnerable position. The Court considers that a proper balance was struck in the present case: there were effective safeguards in the domestic proceedings to prevent abuse, as required by the standards of international human rights law, ensuring that the applicant ’ s rights, will and preferences were taken into account. The applicant was involved at all stages of the proceedings: he was heard in person and he could put forward his wishes. The interference was proportional and tailored to the applicant ’ s circumstances, and was subject to review by competent, independent and impartial domestic courts. The measure taken was also consonant with the legitimate aim of protecting the applicant ’ s health, in a broader sense of his well-being. 91. For the above mentioned reasons, the Court considers that, in the light of the findings of the domestic courts in this particular case, the impugned decision was based on relevant and sufficient reasons and that the refusal to make changes in the mentor arrangements concerning the applicant was not disproportionate to the legitimate aim pursued. 92. Consequently, there has been no violation of Article 8 in the present case. II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4 TO THE CONVENTION 93. Article 2 of Protocol No. 4 to the Convention reads as follows: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” 94. In support of his complaint, the applicant also invoked the provisions of Article 2 of Protocol No. 4 to the Convention. In view of the content of that Article as cited above, in particular the fact that paragraph 3 of the Article is closely aligned with paragraph 2 of Article 8, and taking into account the conclusions reached under Article 8 of the Convention above, the Court does not consider that an examination of the applicant ’ s complaint can lead to different findings when reviewed under Article 2 of Protocol No. 4. There has therefore been no violation of that Article, either. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the Finnish courts’ refusal to replace the mentor, thus preventing him from living in the place of his choice, was justified. The Court considered in particular that the Finnish courts’ decision to refuse to make changes in the mentor arrangements, reached following a concrete and careful consideration of the applicant’s situation, had essentially taken into account his inability to understand what was at stake if he moved, namely that it would involve a radical change in his living conditions. Such a decision, taken in the context of protecting the applicant’s health and well-being, had not therefore been disproportionate. Moreover, the applicant had been involved at all stages of the proceedings and his rights, will and preferences had been taken into account by competent, independent and impartial domestic courts. The Court also held that there had been no violation of Article 2 (freedom of movement) of Protocol No. 4 to the Convention in the present case. |
203 | Access to a lawyer | II. RELEVANT DOMESTIC LAW 68. The relevant part of the Croatian Constitution ( Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows: Article 140 “International agreements concluded and ratified in accordance with the Constitution and made public, and which are in force, shall be incorporated into Croatian law and shall rank, in terms of their legal effects, above statutes. ...” The relevant part of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows: Section 62 “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she considers that an individual act by a State body, a body of local and regional self-government or a legal person with public authority which has determined his or her rights and obligations or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: ‘ constitutional right ’ ) ... 2. If there is provision for another legal remedy in respect of a violation of the constitutional rights [complained of], a constitutional complaint may be lodged only after that remedy has been exhausted. ...” 69. The relevant provisions of the Code of Criminal Procedure ( Kazneni zakon Republike Hrvatske, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) read as follows: Article 2 “... (3) Where not otherwise provided by law, the State Attorney shall bring a criminal prosecution where there is a founded suspicion that an identified individual has committed a publicly prosecutable criminal offence and where there are no statutory obstacles to prosecution of that person.” Article 97 “(1) Police shall bring the arrestee immediately, and within twenty-four hours at the latest, before an investigating judge or release him or her. Specific reasons shall be given for any delays. ... ” Article 102 “(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: ... 4. if the charges involved relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years ’ imprisonment, when detention is justified by the modus operandi or other particularly serious circumstances of the offence; ... ” Article 110 “(1) A defendant, defence lawyer or the State Attorney may lodge an appeal against a decision ordering, extending or lifting a custodial measure, within two days thereof... ...” Article 171 “(1) All State bodies and all legal entities are obliged to report publicly prosecutable criminal offences, whether they have been informed thereof or have learned about such offences on their own. ...” Article 173 “(1) A criminal complaint shall be lodged with a competent State Attorney in writing or orally. ... (3) Where a criminal complaint has been lodged with a court, a police force or a State Attorney not competent to deal with it, the authority in question shall receive the complaint and immediately forward it to the competent State Attorney.” 70. Pursuant to Article 430 of the Code of Criminal Procedure, where the defendant requests an amendment of a final judgment following a finding of a violation of, inter alia, the right to a fair trial, by the European Court of Human Rights, the rules governing a retrial shall apply. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 71. The applicant complained that he had been beaten by the police both during his transport to the Zagreb Police Department and during the police questioning and that during that questioning from 6 a.m. on 1 June 2004 until about 1 a.m. on 4 June 2004 he had been deprived of sleep and food and forced to sit on a chair. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The alleged beatings by the police during the applicant ’ s transport to the Zagreb Police Department 72. The applicant alleged that on 1 June 2004, as he was getting out of the police vehicle, he had been suddenly hit on the back of the neck by a police officer, causing him to fall to the ground and bruise the knuckles of his fingers, his left elbow and his forehead. He had received no medical assistance but had been able to wash the blood off in a toilet. The applicant alleged that he still had scars from these wounds. 73. The Court reiterates that where an individual is taken into police custody in good health but is found to be injured at the time of his release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V, and Satık and Others v. Turkey, no. 31866/96, § 54, 10 October 2000). The allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof beyond reasonable doubt. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Dedovskiy and Others v. Russia, no. 7178/03, § 74, 15 May 2008). 74. Where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others, cited above, § 102; Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV; and Muradova v. Azerbaijan, no. 22684/05, § 100, 2 April 2009). 75. The Court notes firstly that the medical report on the applicant submitted by the Government, drawn up on his arrival at Zagreb County Prison on 4 June 2004, makes no mention of any injuries found. Furthermore, although at the hearing before the investigating judge held on 4 and 7 June 2000 the applicant was represented by a lawyer of his own choice, he did not make any complaints about the alleged police beatings during his transport. Although before the national authorities he did raise complaints of the alleged ill-treatment during the police questioning, he never referred to the beating during his transport to the Zagreb Police department. 76. As to the allegation by the applicant that he had been hit by a police officer on 1 June 2004 in the presence of his wife as he was entering the police car, the Court notes that the applicant ’ s wife made no mention of this incident, and the applicant did not suggest before the national authorities that his wife should give evidence about it. The fact that the applicant ’ s wife decided not to testify in the criminal proceedings against him is of no relevance for this issue, since possible testimony concerning the alleged beatings by the police is unconnected to the assessment of the applicant ’ s criminal responsibility for murder. 77. The Court finds that because of the lack of clear medical findings that the applicant had any injuries, coupled with the lack of any conclusive evidence that physical force was used against the applicant, his complaint as to the substantive aspect of Article 3 of the Convention is unsubstantiated. For the same reasons his assertion that he was beaten by the police during his transport lack credibility and therefore do not entail a procedural obligation under Article 3 of the Convention to investigate the applicant ’ s allegations. 78. It follows that the complaints concerning the applicant ’ s alleged beatings by the police during his transport to the Zagreb Police Department are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 2. The alleged ill-treatment during the police questioning (a) The parties ’ submissions 79. The Government argued that the complaints under Article 3 of the Convention had been lodged outside the six-month time-limit, since the competent court had dismissed the allegations on 26 September 2005, whereas the applicant had lodged his application with the Court on 10 December 2007. 80. They argued further that the applicant had also failed to exhaust domestic remedies, since he had not complained about the alleged ill ‑ treatment to the investigating judge and had not lodged a criminal complaint with the relevant prosecuting authorities against the police officers allegedly implicated or any complaints about his treatment by the police officers with the Ministry of the Interior. He had also failed to seek damages from the State in that respect. 81. The applicant argued that he had exhausted all available remedies because he had complained about his ill-treatment during the criminal proceedings against him, including by lodging the constitutional complaint which had been dismissed by the Constitutional Court on 11 March 2009. (b) The Court ’ s assessment (i) Compliance with the six-month rule 82. The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continuously open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I). 83. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period as the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001). 84. The Court reiterates that where there has been an action allegedly in contravention of Articles 2 or 3 of the Convention, the victim is expected to take steps to keep track of the investigation ’ s progress or lack thereof, and to lodge his or her application with due expedition once he or she is or should have become aware of the lack of any effective criminal investigation (see, mutatis mutandis, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009 ‑ ...). 85. As to the present case, the Court notes that the issue of the applicant ’ s treatment while in the hands of the police at the police station was repeatedly raised by the applicant throughout his criminal trial and that the applicant also made allegations in that regard in his constitutional complaint. Therefore, the six-month time-limit started to run when the Constitutional Court dismissed the applicant ’ s constitutional complaint, on 11 March 2009. The present application was lodged with the Court on 10 December 2007. 86. It follows that the Government ’ s objection as to the applicant ’ s failure to comply with the six-month time-limit must be rejected. (ii) Exhaustion of domestic remedies 87. The Court reiterates that where an applicant has a choice of domestic remedies, it is sufficient for the purposes of the rule of exhaustion of domestic remedies that he or she make use of a remedy which is not unreasonable and which is capable of providing redress for the substance of his or her Convention complaints (see, inter alia, Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000, and Krumpel and Krumpelová v. Slovakia, no. 56195/00, § 43, 5 July 2005 ). Indeed, where an applicant has a choice of remedies and their comparative effectiveness is not obvious, the Court interprets the requirement of exhaustion of domestic remedies in the applicant ’ s favour (see Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 200 58/02, 11673/02 and 15343/02, § 110, ECHR 2008-... (extracts), and the cases cited therein). Once the applicant has used such a remedy, he or she cannot also be required to have tried others that were available but probably no more likely to be successful (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 56, 12 April 2007, and the cases cited therein). 88. The Court notes that in his submission of 9 December 2004 to the trial court, the applicant complained about the manner of his police questioning and explicitly alleged that he had been beaten by the police, deprived of sleep and forced to sit on a chair continuously from 6 a.m. on 1 June 2004 until about 1 a.m. on 4 June 2004, as well as deprived of food for twenty hours. He repeated these allegations in his appeal against the first-instance judgment and in his constitutional complaint. 89. The Court considers that by informing the judicial authorities of his treatment during the police questioning the applicant complied with his duty to inform the relevant national authorities of ill-treatment against him. In this connection, the Court is also mindful of the relevant provisions of the Code of Criminal Procedure, which require a court receiving a criminal complaint involving allegations of a publicly prosecutable criminal offence to forward it immediately to the competent State Attorney. In the Court ’ s view, there is no doubt that the allegations of ill-treatment by the police amounted to such a criminal offence. 90. As regards the civil remedies suggested by the Government, the Court considers that effective deterrence against ill-treatment by State officials, where fundamental values are at stake, requires efficient criminal-law provisions. The civil remedies relied on by the Government cannot be regarded as sufficient for the fulfilment of a Contracting State ’ s obligations under Article 3 of the Convention in cases such as the present one, as they are aimed at awarding damages rather than identifying and punishing those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 85, Reports of Judgments and Decisions 1998-VIII). 91. Against this background, the Court finds that the applicant made adequate use of the remedies provided for in domestic law. Accordingly, the applicant ’ s complaints concerning the manner of his questioning by the police cannot be dismissed for failure to exhaust domestic remedies. (iii) Conclusion 92. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 93. The applicant submitted that on his arrival at the Zagreb Police Department shortly after 6 a.m. on 1 June 2004 he had been taken to an interview room and kept there until 4 June 2004. Throughout that time he had been forced to sit on a chair without sleep, food or treatment for his medical conditions such as diabetes, cardiac problems and high blood pressure. During questioning the police officers had continually slapped him in the face, hit him on the head with a heavy notebook and once, when he had fallen to the floor, kicked him all over his body, causing him injuries including a permanent injury to the coccyx. 94. The applicant argued that the manner of his questioning by the police amounted to ill-treatment contrary to Article 3 of the Convention. 95. The Government argued that the applicant had not been beaten by the police officer and that no injuries had been recorded on his arrival at Zagreb County Prison. As to the applicant ’ s allegations that he had been forced to sit on a chair during his whole stay at the Zagreb Police Department and had not been given any food or water, the Government submitted that the applicant had been given food and drinks throughout his stay at the Police Department. They maintained further that, after the polygraph test of the applicant had been carried out on 1 June 2004 between 11 a.m. and 6.15 p.m., he had been interviewed by two police officers, S.I. and R.H., and then allowed to rest on “ an auxiliary bolster” [a spare cushion ] at the Zagreb Police Department. 96. After he had been arrested at 7 a.m. on 2 June 2004 his questioning by the police had continued into the night of 2 June, after which he had been given “an opportunity to rest on an auxiliary bolster ” at the Zagreb Police Department. 97. On 3 June 2004 the applicant had been formally interviewed by the police in the presence of lawyer P.B. When the interview finished at about 2.30 a.m. on 4 June 2004 he had been taken to the detention unit of the Zagreb Police Department and placed in a cell furnished with a bed, where he had spent the rest of the night. Detainees in that unit were regularly given food and drinks. 98. The Government submitted that no record existed of any of the above. 99. As to the procedural aspect of Article 3, they maintained that the trial court had heard evidence from all relevant witnesses regarding the manner of the applicant ’ s police questioning and had found it to have been conducted in accordance with the law. 2. The Court ’ s assessment (a) Substantive aspect of Article 3 of the Convention 100. The Court notes that in the part of their observations concerning the alleged substantive violation of Article 3 of the Convention the Government stated that the police officer had not hit the applicant and that no injuries had been recorded when the applicant had arrived at Zagreb Prison. They also stated that the applicant had been allowed to sleep on “an auxiliary bolster” and had been given food. However, no documents support these statements. 101. In assessing the applicant ’ s version of events – that he was deprived of sleep and food and forced to sit on a chair continuously for two days and nineteen hours – the Court finds that a number of facts add credibility to his submissions. It notes that the applicant ’ s questioning, which led to his criminal prosecution for murder, took place in the absence of basic procedural guarantees (see below, §§ 1 50 -15 8 ). In particular, the applicant was questioned without the presence of a lawyer. Furthermore, his initial detention by the police was not registered because it is undisputed that the applicant arrived at the Zagreb Police Department at about 6 a.m. on 1 June 2004 but his formal detention commenced twenty-three hours later, at 7 a.m. on 2 June 2004. 102. Furthermore, in his testimony before the trial court police officer S.I., who had questioned the applicant, in no way denied the applicant ’ s allegations, although he had been aware of them and of their relevance to the question whether the applicant ’ s confession had been made in accordance with the requisite procedural guarantees, the very issue the police officer had been called to testify about. Furthermore, lawyer P.B. testified that when he had arrived at the Police Department at 1 a.m. on 4 June 2004 the applicant had looked very tired and had actually fallen asleep at the table where he was sitting. 103. The Court also takes note of the fact that the police kept no record of the time when the applicant was being interviewed by the police officers, save for the polygraph test carried out between 11 a.m. and 6.15 p.m. on 1 June 2004 and his final interviews in the early morning of 4 June 2004. Likewise, the police kept no record of when the applicant was allowed to sleep and when he was given food or drinks. Furthermore, the Government submitted that only after his final interview in the early morning of 4 June 2004 had the applicant been placed in a proper cell furnished with a proper bed. 104. Against that background, and particularly in view of the absence of any official record the Court accepts the applicant ’ s allegations as being true. 105. The Court reiterates that Article 3 of the Convention ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. It also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human rights requires that these provisions be interpreted and applied so as to make its safeguards practical and effective (see Avşar v. Turkey, no. 25657/94, § 390, ECHR 2001-VII (extracts)). Where allegations are made under Article 3 of the Convention, the Court must conduct a particularly thorough scrutiny (see Ülkü Ekinci v. Turkey, no. 27602/95, § 135, 16 July 2002) and will do so on the basis of all the material submitted by the parties. 106. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C, and A. v. the United Kingdom, 23 September 1998, § 20, Reports 1998-VI). 107. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280, and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007). 108. As to the present case, the Court notes that the applicant arrived shortly after 6 a.m. on 1 June 2004 at Zagreb Police Department, where he was deprived of sleep and forced to sit on a chair continuously for two days and nineteen hours. When at about 1 a.m. on 4 June 2004 lawyer P.B. arrived, the applicant was given a sandwich and a fruit juice. The Court is persuaded that such treatment caused the applicant physical and mental suffering to a degree incompatible with the prohibition of ill-treatment under Article 3 of the Convention. 109. On the other hand, the Court does not find sufficient evidence to establish the veracity of the applicant ’ s allegations that he was also beaten by the police during his questioning. 110. The Court considers that the treatment described by the applicant constituted inhuman treatment and that there has therefore been a violation of the substantive aspect of Article 3 of the Convention. (b) Procedural aspect of Article 3 of the Convention (i) General principles 111. The Court reiterates its settled case-law to the effect that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. An obligation to investigate “is not an obligation of result but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant ’ s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. 112. The investigation of arguable allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill ‑ founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical certificates apt to provide a full and accurate record of the injuries and an objective analysis of the medical findings, in particular as regards the cause of the injuries. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard. The investigation into the alleged ill-treatment must be prompt. Lastly, there must be a sufficient element of public scrutiny of the investigation or its results; in particular, in all cases, the complainant must be afforded effective access to the investigatory procedure (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports 1998-VIII; Mikheyev v. Russia, no. 77617/01, §§ 107-108, 26 January 2006; and Petropoulou-Tsakiris v. Greece, no. 44803/04, § 50, 6 December 2007). (ii) Application of the above principles to the present case 113. Turning to the circumstances of the present case, the Court notes that it is undisputed between the parties that the applicant arrived at Zagreb Police Department in Heinzlova Street in Zagreb at about 6 a.m. on 1 June 2004 and stayed there until he was transferred to Zagreb County Prison on 4 June 2004. 114. The applicant repeatedly complained during his trial and in his constitutional complaint about the ill-treatment at issue. By informing the judicial authorities assigned to his case the applicant complied with his duty to inform the relevant national authorities of his alleged ill-treatment. 115. The applicant ’ s allegations of ill-treatment by the police were serious, and in view of the fact that it was clear that he had been in the hands of the police from 6 a.m. on 1 June 2004 until an unspecified time on 4 June 2004, they called for an official and thorough examination by the relevant authorities. 116. The Court notes firstly that no official investigation has ever been opened into the applicant ’ s allegations of ill-treatment. It notes further that the trial court heard evidence concerning the circumstances of the applicant ’ s questioning by the police from police officer S.I. and typist M.B., and from lawyer P.B. They all concentrated their statements on the time when lawyer P.B. had arrived at the police department, that is to say at about 1 a.m. on 4 June 2004. The trial court established that the applicant had eaten a sandwich and drunk a fruit juice in the presence of the lawyer and had then fallen asleep at the table. However, no assessment was made as to the circumstances of the applicant ’ s stay at the police station from 1 June 2004 until the time when lawyer P.B. arrived. 117. The trial court also ordered a psychiatric examination of the applicant in order to establish, inter alia, his mental state during police questioning. However, this report made no contribution to verifying the applicant ’ s allegations of ill-treatment. 118. It follows that there was no effective official investigation into the applicant ’ s allegations of ill-treatment by the police. Accordingly, there has also been a violation of the procedural aspect of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 119. The applicant complained that his detention had not been lawful and had not followed the procedure prescribed by law and that he had not been promptly informed of the reasons for his arrest and of the charges against him. He also complained about the duration of and the reasons relied on for his pre-trial detention, and that he had not been brought promptly before a judge authorised to order his release. He relied on Article 5 §§ 1, 2 and 3 of the Convention, the relevant parts of which provide: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ... ” Admissibility 1. The parties ’ submissions 120. The Government argued that the applicant had not exhausted all relevant domestic remedies because he had failed to lodge appeals against the decisions concerning his detention. 121. The applicant opposed that view. 2. The Court ’ s assessment (a) General principles 122. The Court reiterates that in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A, and Remli v. France, 23 April 1996, § 33, Reports 1996-II). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. To hold otherwise would mean duplicating the domestic process with proceedings before the Court, which would hardly be compatible with the subsidiary nature of the Convention (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 42, 6 November 2008). Nevertheless, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his or her Convention grievances (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and John Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005). (b) Application of these principles to the present case (i) The applicant ’ s detention by the police 123. The Court notes that the applicant arrived at the police station at around 6 a.m. on 1 June 2004. According to the applicant his detention should be counted from that time. The Government contended that he had been formally arrested on 2 June 2004 at 7 a.m. and that his initial detention under the direct police order had lasted for twenty-four hours, until 3 June 2004 at 7 a.m. 124. Leaving the issue of the actual time of the applicant ’ s arrest aside, the Court notes that the applicant signed the arrest report, in which it was expressly stated that he had been arrested on 2 June 2004 at 7 a.m. and that he had raised no objections to the order. After that, the extension of his police custody was ordered by a decision of the investigating judge of the Zagreb County Court on 3 June 2004. In that decision the judge expressly stated that the applicant had been arrested on 2 June 2004 at 7 a.m. The decision was served on the applicant. 125. The Court notes that the applicant complained that in reality he had been detained from the moment he had arrived at the police station, that is to say from 1 June 2004 at 6 a.m. He further complained that he had not been brought before a judge promptly. 126. In this connection the Court notes that, although the applicant had the right to lodge an appeal against the decision of the investigating judge, in the context of which he could have put forward the above-mentioned complaints, he omitted to do so. Had his appeal been unsuccessful he could also have lodged a constitutional complaint. 127. Furthermore, a decision of the Zagreb County Court investigating judge of 4 June 2004, issued after a hearing in the applicant ’ s presence, again expressly mentioned that the applicant had been arrested on 2 June 2004 at 7 am. The applicant did not lodge an appeal against that decision. 128. The Court considers that the applicant, by omitting to lodge an appeal against the decisions of the Zagreb County Court investigating judge of 3 and 4 June 2004, failed to exhaust domestic remedies. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. (ii) The applicant ’ s further detention 129. As regards the grounds for and duration of the applicant ’ s detention, the Court notes that his detention was ordered and then extended by numerous decisions of the national judicial authorities. Each of these decisions was served on the applicant and each was accompanied by instructions on how to lodge an appeal. However, with the exception of the decision of 20 July 2005, the applicant did not lodge an appeal against any of the decisions concerning his detention. 130. As regards the decision of 20 July 2005, when his appeal was dismissed by the Supreme Court on 4 August 2005 the applicant did not lodge a constitutional complaint against that decision. 131. In this connection the Court notes that the Croatian Constitution guarantees the right to liberty of person and that the Convention is directly applicable in Croatia. The Croatian system allows for a separate constitutional complaint against each appeal decision on detention (see Peša v. Croatia, no. 40523/08, § 54, 8 April 2010, and Getoš-Magdić v. Croatia, (dec.), no. 56305/08, 24 June 2010). 132. By failing to use these remedies the applicant did not give the national authorities an opportunity to prevent or put right the violations alleged against him before he submitted these allegations to the Court. It follows that this part of the application must also be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 133. The applicant complained that his trial had been unfair because he had not been afforded adequate time and facilities to prepare his defence; that he had been questioned by the police without the presence of a defence lawyer; that the services of his officially assigned legal counsel had fallen short of the requirements of a fair trial and that his requests for witnesses to be called had been denied without good reason. He relied on Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention, the relevant parts of which provide: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... ” A. Admissibility 1. Complaints concerning the time and facilities for preparation of the applicant ’ s defence and calling of witnesses 134. The Government argued that the applicant had failed to exhaust domestic remedies because he had not included these complaints in his appeal or in his constitutional complaint. 135. The applicant replied that he had exhausted all available remedies. 136. As regards the exhaustion of domestic remedies the Court refers to the general principles stated in paragraph 11 3 above. It notes, in respect of applications lodged against Croatia that, according to the Court ’ s case-law, applicants are in principle required to exhaust remedies before the domestic courts and ultimately to lodge a constitutional complaint. The applicant ’ s right to be allowed adequate time and facilities for preparation of his defence, his right to be legally represented and his right to examine witnesses in criminal proceedings against him, which featured in his complaints under Article 6 before the Court, are all guaranteed by Article 2 9 of the Croatian Constitution. Furthermore, the Convention is directly applicable in Croatia. 137. The Court notes that on 3 July 2007 the applicant did lodge a constitutional complaint within the prescribed time-limit. In that complaint, however, he did not rely, even in substance, on the same grounds which he submitted before the Court. 138. Before the Court he complained, inter alia, that the requirements of a fair trial had not been satisfied in the criminal proceedings against him because he had had no opportunity to examine the witnesses called on behalf of the prosecution and had not been afforded time and facilities for the preparation of his defence. In his constitutional complaint he alleged that his right to a lawyer had been violated throughout the proceedings, and in particular during his questioning by the police, and that his alleged confession before the police had been unlawfully obtained. He also complained that from 1 to 4 June 2004 he had been kept at the police department, all the time sitting on a chair, without sleep and food, and that when he had arrived at Zagreb Prison, he had had injuries on his body. 139. Hence, contrary to the principle of subsidiarity, the applicant did not provide the Constitutional Court with an opportunity to afford him a remedy in respect of his complaints concerning the allegedly insufficient time and facilities afforded to him for preparation of his defence and the trial court ’ s refusal to hear witnesses he had called. 140. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 2. Complaints concerning the applicant ’ s right to defence counsel during his police questioning and during the trial 141. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 142. The applicant argued that he had been questioned by the police without the assistance of a lawyer. The applicant further alleged that he had not been allowed to call a lawyer of his own choosing to assist him during the interview. The police officers made a record of the questioning, the content of which was untrue, according to the applicant, and was not read aloud to him. They stated that he had confessed to the murder of V.M. The applicant was forced to sign the written record of his alleged questioning. He was not able to read it owing to the fact that he had no glasses on him although he suffered from severe long-sightedness and could not read without glasses, a fact which was not known to the police. On 4 June 2004 at about 1 a.m. a lawyer, P.B., called by the police, arrived. He signed the record of the applicant ’ s questioning, which had already been prepared, without talking to the applicant and without reading it, and then left. 143. The applicant maintained that the lawyer P.B., when questioned at his trial, had confirmed the applicant ’ s allegations that he, P.B., had not been present during the applicant ’ s questioning, that he had not heard the police officers informing the applicant of his defence rights and that he himself had not been given a copy of the written record of the applicant ’ s questioning. P.B. had also said that this was standard police procedure and that he encountered about two hundred such cases each year. 144. The applicant further maintained that the officially appointed defence lawyer, M.K., had not provided him with adequate legal assistance during the trial since he had visited him in prison only once, on his 333 rd day in detention, and then only to ask for money; they had had no other contact. He had complained to the presiding judge about the lack of contact with the officially appointed lawyer but no steps had been taken to remedy that situation. 145. The Government argued that the applicant had been informed of his right to legal assistance at the time of his arrest. According to the Government, the applicant was not arrested on 1 June 2004, but was merely asked to come for interview to the Zagreb Police Department. He was told that he could leave whenever he wanted. 146. At the time of his arrest the applicant was informed of the reasons for his arrest, his rights and in particular his right to a lawyer. His wife and a lawyer, E.Z., were informed. However, E.Z. said that he could not come. When on 3 June 2004 the applicant was informed that the body had been found, he again asked that E.Z. be called. However, it turned out that E.Z. had left for Budapest and the applicant was asked to choose another lawyer. 147. Since the lawyer the applicant had attempted to contact had not been available he had chosen P.B. from the list of lawyers kept by the police. This lawyer had assisted the applicant during the police questioning. 148. During the trial before the court of first instance the applicant had been represented by an officially appointed lawyer. The lawyer had attended all the hearings, put relevant questions to witnesses, adduced evidence and lodged appeals. 2. The Court ’ s assessment (a) Complaint about the lack of legal assistance during the applicant ’ s police questioning (i) General principles 149. The relevant principles have been set forth in the Grand Chamber judgment in Salduz v. Turkey ( [GC], no. 36391/02, 27 November 2008), as follows: “50. The Court reiterates that, even if the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial by a ‘ tribunal ’ competent to determine ‘ any criminal charge ’, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 - especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ( Imbrioscia, cited above, § 36). As the Court has already held in its previous judgments, the right set out in paragraph 3 (c) of Article 6 of the Convention is one element, amongst others, of the concept of a fair trial in criminal proceedings contained in paragraph 1 ( Imbrioscia, cited above, § 37, and Brennan, cited above, § 45). 51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial ( Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to ‘ guarantee not rights that are theoretical or illusory but rights that are practical and effective ’ and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused ( Imbrioscia, cited above, § 38). 52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, § 63; Brennan, cited above, § 45, and Magee, cited above, § 44). 53. These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards (see paragraphs 37-42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused. 54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial ( Can v. Austria, no. 9300/81, Commission ’ s report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-..., and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the CPT (paragraphs 39-40 above), in which the committee repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill ‑ treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies. 55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently ‘ practical and effective ’ (see paragraph 51 above) Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.” (ii) Application of the above principles in the present case 150. Turning to the present case, the Court notes that the applicant arrived at Zagreb Police Department on 1 June 2004 at about 6 a.m. in order to be interviewed by the police in connection with the murder of V.M. However, the national authorities considered that he had not been arrested until 2 June 2004 at 7 a.m. 151. The applicant was provided with the assistance of a lawyer from about 1 a.m. on 4 June 2004. Whether the Court accepts the applicant ’ s assertion that he had been arrested on 1 June, or the Government ’ s assertion that the arrest took place on 2 June, the fact remains that during the initial questioning by the police the applicant did not have the assistance of a lawyer. 152. The evidence given at the criminal trial by the applicant, the lawyer P.B. and even the police officer S.I., who questioned the applicant, clearly shows that the police questioned the applicant before P.B. arrived at the police department. 153. In view of the principle that an accused has to be provided with the assistance of a lawyer from the time of his arrest, the Court does not have to examine the parties ’ arguments as to the quality of the legal assistance afforded to the applicant by P.B. Irrespective of the quality of this assistance, the fact remains that the applicant was questioned by the police and made his confession without consulting with a lawyer or having one present. 154. The confession made by the applicant to the police was used as valid evidence in the criminal trial against the applicant and his conviction was to a significant degree based on it. Thus, in the present case, the applicant was undoubtedly affected by the restrictions on his access to a lawyer, since his statement to the police was used in convicting him. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which occurred during the applicant ’ s police custody. However, it is not for the Court to speculate on the impact which the applicant ’ s access to a lawyer during police custody would have had on the ensuing proceedings (see Salduz, cited above, § 5 9 ). 155. The question now remains whether the applicant waived his right to legal counsel. In this connection the Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-...; Kolu, cited above, § 53; and Colozza v. Italy, 12 February 1985, § 28, Series A no. 89). 156. The applicant in the present case complained from the initial stages of the proceedings about the lack of legal assistance during his initial police questioning and also about the quality of the legal assistance provided to him by lawyer P.B. 157. The police officer S.I., in his evidence before the trial court, also said that the applicant had asked that the lawyer E.Z. be called; the Government reaffirmed this in their version of the facts. The Court therefore concludes that the applicant did not waive his right to legal assistance during his police questioning. 158. Against this background, the Court finds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case. (b) Complaint about the lack of adequate legal assistance during the trial (i) General principles 159. Further to the principles enunciated in paragraph 13 6 the Court considers that the following elements are also of relevance to the issue of the applicant ’ s representation by officially appointed counsel during his criminal trial before the Velika Gorica County Court. 160. The Court observes that the responsibility of the Contracting Parties is incurred by the actions of their organs. A lawyer, even if officially appointed, cannot be considered to be an organ of the State. Given the independence of the legal profession from the State, the conduct of the case is essentially a matter between the defendant and his or her counsel, whether appointed under a legal-aid scheme or privately financed, and, as such, cannot, other than in special circumstances, incur the State ’ s liability under the Convention (see Artico v. Italy, 13 May 1980, § 36, Series A no. 37; Daud v. Portugal, 21 April 1998, § 38, Reports 1998-II; Tuziński v. Poland (dec), no. 40140/98, 30 March 1999; Rutkowski v. Poland (dec.), no. 45995/99, ECHR 2000-XI; and Cuscani v. the United Kingdom, no. 32771/96, § 39, 24 September 2002). 161. Nevertheless, assigning counsel to represent a party to the proceedings does not in itself ensure the effectiveness of the assistance (see Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275 ). There may be occasions when the State should act and not remain passive when problems of legal representation are brought to the attention of the competent authorities. It will depend on the circumstances of the case whether, taking the proceedings as a whole, the legal representation may be regarded as practical and effective (see, mutatis mutandis, Artico, cited above, § 33; Goddi v. Italy, 9 April 1984, § 27, Series A no. 76; Rutkowski, cited above; Staroszczyk v. Poland, no. 59519/00, §§ 121-122; Siałkowska v. Poland, no. 8932/05, §§ 99-100, 22 March 2007; and Ebanks v. the United Kingdom, no. 36822/06, §§ 71-73, 26 January 2010 ). (ii) Application of these principles to the present case 162. Turning to the circumstances of the present case the Court notes that the applicant alleged that his officially appointed counsel had visited him only once, on 2 May 2005, the 333 rd day of his detention, and then only to ask for money. The applicant complained several times about the quality of the services of his appointed counsel and asked for him to be replaced; this request was refused. 163. However, the Court has to ascertain whether, owing to the lack of contact with the officially appointed defence lawyer, the applicant suffered any actual prejudice in the criminal proceedings against him. 164. In this connection the Court notes that the lawyer, who represented the applicant during the trial stage of the proceedings, attended all the hearings before the trial court and actively participated by making relevant proposals and putting questions to the witnesses. 165. The defence lawyer also asked that the police report containing the applicant ’ s confession be excluded from the case file and lodged an appeal against the decision refusing that request. He further lodged an appeal against the first-instance judgement (see, conversely, Ananyev v. Russia, no. 20292/04, § 55, 30 July 2009, where the Court found that there had been a violation of the applicant ’ s right to a fair trial on the ground that the officially appointed lawyer, in addition to not having any contact with the applicant, had also not prepared any grounds of appeal of her own). 166. The Court further notes that the record containing the applicant ’ s alleged confession was part of the case file and that counsel had the opportunity, even without consulting the applicant in person, to study the case file and prepare his line of defence on that basis. 167. The Court also notes that at the appeal stage of the proceedings the applicant was represented by a lawyer of his own choice and that he therefore had an opportunity to advance all the relevant arguments he might have wished to. However, neither in his appeal to the Supreme Court nor in his constitutional complaint did the applicant advance any new arguments which had not been previously submitted by his officially appointed defence counsel. 168. Against this background, and viewing the proceedings as a whole, the Court considers that the lack of contact between the applicant and his officially appointed defence counsel did not prejudice the applicant ’ s defence rights to a degree incompatible with the requirements of a fair trial. 169. Therefore, there has been no violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case in respect of the applicant ’ s representation by officially appointed defence counsel during the trial before the Velika Gorica County Court. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 170. Lastly, the applicant invoked Articles 13 and 14 of the Convention. 171. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 172. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 173. The applicant claimed 50 euros (EUR) in respect of non-pecuniary damage for each day of his allegedly unlawful detention. 174. The Government considered the applicant ’ s claim to be unfounded and in any event excessive. 175. The Court notes that the applicant ’ s complaints under Article 5 of the Convention have been declared inadmissible and that he has not submitted any claim for pecuniary or non-pecuniary damage in connection with his other complaints. It therefore dismisses this claim. 176. The Court also notes that the applicant has the possibility to seek a fresh trial under Article 430 of the Croatian Code of Criminal Procedure. B. Costs and expenses 177. The applicant did not claim any costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account. | The Court held that there had been a violation of Article 6 § 3 in conjunction with Article 6 § 1 of the Convention, on account of the lack of legal assistance afforded to the applicant during his questioning by the police. While it was not for the Court to speculate on the impact which access to a lawyer during police custody would have had on the ensuing proceedings, it was clear that neither the assistance provided subsequently by a lawyer nor the adversarial nature of the proceedings could counteract the defects which had occurred during his initial questioning. The applicant had further not waived his right to legal assistance during his police questioning, as he had complained about the lack of that assistance from the initial stages of the proceedings. The Court also held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention both in respect of the applicant’s treatment at the Zagreb Police Department and in respect of the failure to investigate his complaint. |
943 | Freedom of expression | II. RELEVANT DOMESTIC LAW AND PRACTICE 27. General information on the Supreme Council of Judges and Prosecutors is outlined in the following decision: İmrek v. Turkey (dec.), no. 57175/00, 28 January 2003. 28. The relevant provision of Law no. 2802 on judges and prosecutors reads as follows: Section 68 “ Transfer to another jurisdiction shall mean the transfer to a jurisdiction one degree lower than the one in which the person concerned is currently working, for a minimum term of service, if: a) he/she undermines the honour and dignity of the judiciary and respect for his/her own position as a judge by his/her conduct and relations. b) if he/she by his/her action and conduct gives the impression that he/she cannot perform his/her duty in a correct and an impartial manner. ... ” 29. Law no. 4455 grants civil servants an amnesty in relation to disciplinary offences committed prior to 23 April 1999 and annuls any resulting penalties or restrictions. However, it does not provide the possibility to claim for any pecuniary loss incurred as a result of disciplinary sanctions. THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 30. The Government suggested that the applicant was no longer a victim since the consequences of the disciplinary measure imposed on him had been the subject of an amnesty. In that respect they submitted that the disciplinary sanction against the applicant had been erased from his record on 22 October 1999 and that he had been promoted in August 1999. The Government invited the Court to declare the application inadmissible or, alternatively, to strike it out of the Court's list of cases in accordance with Article 37 of the Convention. 31. The applicant disagreed with the Government's arguments and maintained his complaints. 32. The Court reiterates that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a'victim'unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Rotaru v. Romania [GC], no. 28341/95, § 35, ECHR 2000-V). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see, for example, Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003). 33. In the instant case, the Court notes that the disciplinary sanction against the applicant was the subject of an amnesty. The amnesty in question did not, however, acknowledge that there had been any breach of the applicant's rights nor did it provide the possibility for the applicant to reclaim any alleged loss of earnings caused by the impugned disciplinary sanction. Therefore, the Court does not consider that the domestic authorities have recognised or redressed the violation alleged by the applicant. He remains a “victim” of those alleged violations. 34. Accordingly, the Government's objection must be dismissed. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 35. The applicant complained that the disciplinary sanction imposed on him had infringed his right to freedom of expression since he had been punished for reading a daily newspaper and watching a television channel. He relied on Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime...” A. The parties'submissions 36. The Government referred to their earlier submissions and maintained that the interference with the applicant's right to freedom of expression was justified under the provisions of the second paragraph of Article 10. They submitted that the disciplinary sanction against the applicant had not been based on his habit of reading publications of the PKK or for watching MedTV. In this connection they stated that the investigation conducted against the applicant had established, inter alia, that the applicant had been emphasising the differences between ethnic origins and therefore created the impression that he was no longer impartial. In addition, they noted that he had failed to observe the profession's regulations as regards hours and clothing as well as maintaining good relations with his colleagues. The Government stressed that by reading a publication of the PKK which had been subsequently banned and by behaving in a manner which displayed sympathy for the terrorist organisation, the applicant had undermined the honour and dignity of the judiciary as well as respect for his own position as a judge and that therefore the disciplinary measure imposed on him had been proportionate. 37. The applicant maintained his allegations. He claimed, in particular, that people were automatically accused of being separatists or terrorists if they affirmed their Kurdish identity. He alleged that there existed a general policy of neutralising the influence of Kurdish civil servants by appointing them to certain regions or insignificant posts. The applicant submitted that despite the fact that he was a senior judge, he was appointed to lower ‑ ranking jurisdictions. The applicant alleged that investigation were been opened against him for no reason. He maintained that he was unable to follow the publications he wanted to read for fear of misinterpretation. B. The Court's assessment 38. The Court notes that it is undisputed between the parties that there has been an interference with the applicant's right to freedom of expression on account of the disciplinary sanction imposed on him for undermining the honour and dignity of the judiciary as well as respect for his own position as a judge. It further considers that, since the disciplinary measure was based on Section 68 of Law no. 2802, the interference was prescribed by law and pursued a legitimate aim, namely maintaining the authority and impartiality of the judiciary (see Altın v. Turkey (dec.), no. 39822/98, 6 April 2000). The Court will therefore confine its examination of the case to the question whether the interference was “necessary in a democratic society”. 39. The Court reiterates the basic principles laid down in its judgments concerning Article 10 (see, in particular, İbrahim Aksoy v. Turkey, nos. 28635/95, 30171/96 and 34535/97, § 51-53, 10 October 2000, Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, pp. 25-26, § § 52-5 3, and Wille v. Liechtenstein [GC], no. 28396/95, § § 61-62, ECHR 1999 ‑ VII ). It will examine the present case in the light of these principles. 40. The Court must look at the impugned interference in the light of the case as a whole. It must determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see, among many other authorities, Zana v. Turkey, judgment of 25 November 1997, Reports 1997 ‑ VII, pp. 2547 ‑ 48, § 51). 41. In the Vogt case, cited above, the Court held as follows, in connection with the dismissal of a civil servant: “These principles apply also to civil servants. Although it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10 of the Convention. It therefore falls to the Court, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 § 2. In carrying out this review, the Court will bear in mind that whenever civil servants'right to freedom of expression is in issue the'duties and responsibilities'referred to in Article 10 § 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim.” 42. Given the prominent place among State organs which is occupied by the judiciary in a democratic society, the Court considers that this is particularly so in the case of restrictions on the freedom of expression of a judge in connection with the performance of his functions, albeit the judiciary is not part of the ordinary civil service (see Pitkevich v. Russia (dec.), no. 47936/99, ECHR 2001). 43. At the outset the Court observes that two separate disciplinary measures were imposed on the applicant in respect of the five sets of different charges brought against him (see paragraph 18 above). The applicant's complaint pertains to the first set of charges. The Court therefore does not find it relevant to assess the other set of charges brought against the applicant for the purposes of determining whether the disciplinary sanction imposed on him was proportionate to the aim pursued. 44. The Court notes that the applicant was transferred to a lesser jurisdiction because the Supreme Council considered that he had undermined the honour and dignity of the judiciary as well as respect for his own position as a judge and by his action and conduct had given the impression that he could not perform his duty in a correct and an impartial manner. The Government argued that the applicant had given the impression that he was no longer impartial by following PKK-related media and through his comments. The applicant refuted these allegations. 45. The Court observes that neither the decisions of the domestic authorities nor the Government's submissions before the Court give a clear and precise indication as regards the applicant's impugned comments or behaviour or the exact grounds on which the Supreme Council found it established that the applicant had breached Section 68 (a) and (b) of Law no. 2802. The only information available to the Court are the accusations put vaguely to the applicant (see paragraph 13 above) and the latter's submissions concerning various incidents or events that might have triggered these accusations (see paragraphs 15-16 above). 46. The Court finds no reference in the case file to any known incident which would suggest that the applicant's impugned conduct, including that of following PKK-related media, had a bearing on his performance as a judge and, particularly, during any previous, pending or imminent proceedings (see, Wille, § 69, cited above). It also notes that no evidence was adduced by the Government to demonstrate that the applicant had overtly associated himself with the PKK or behaved in a way which could call into question his capacity to deal impartially with related cases coming before him. In the Court's view, these are the essential factors in assessing the necessity of the measure taken by the authorities. 47. In the absence of any such information, the Court cannot but assume that the authorities attached a considerable weight to the fact that the applicant followed or attempted to follow PKK-associated media. In this connection the Court reiterates that freedom of expression requires that care be taken to dissociate the personal views of a person from received information that others wish or may be willing to impart to him or her (see, mutatis mutandis, Halis v. Turkey, no. 30007/96, § 34, 11 January 2005 ). 48. Having regard to the circumstances of the case as a whole and notwithstanding the national authorities'margin of appreciation, the Court considers that the interference with the applicant's freedom of expression was not based on sufficient reasons to show that the interference complained of was “necessary in a democratic society”. This finding makes in unnecessary for the Court to pursue its examination in order to determine whether the disciplinary sanction imposed on the applicant was proportionate to the aim pursued. 49. It follows that there has been a violation of Article 10 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 50. The applicant complained that he had been discriminated against on account of his ethnic origin. He maintained that if a judge of Turkish ethnic origin had watched that particular television channel or followed that particular publication, he or she would not have been sanctioned. The applicant relied on Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 51. The Government disputed the applicant's allegations. 52. The Court has examined the applicant's allegation. However, it finds that the evidence before it does not disclose any appearance of discrimination on the basis of the applicant's ethnic origin. 53. It follows that there has been no violation of Article 14. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 54. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 55. The applicant claimed pecuniary damage for loss of earnings. He estimated that his loss was around 20,000 euros (EUR) at the date of his just satisfaction claims and that it would reach around EUR 150,000 by 2005. The applicant pointed out that, since a judge's salary depended on various factors, he was unable to give a precise sum. He submitted pay statements of judges at various grades in support of his claims under this head. He further claimed EUR 500,000 in respect of non ‑ pecuniary damage. The applicant claimed that he and his family had suffered due to the fact that he had to work in small and socially backward provinces and that he had lost two years'seniority. 56. The Government contested the amounts. 57. The Court accepts that the applicant must have incurred some pecuniary loss due to the fact that he was not eligible for promotion for two years. However, the Court finds it difficult to determine a precise amount since - as pointed out by the applicant - the salary and promotion scales of judges are dependent upon various factors. The Court also notes that, since 2001, the applicant is no longer a judge but works as a lawyer. 58. The Court further considers that the applicant may be taken to have suffered a certain amount of distress given the circumstances of the case. 59. Making an assessment on an equitable basis, the Court awards the applicant EUR 5,000 for pecuniary damage and EUR 1,000 for non ‑ pecuniary damage. B. Costs and expenses 60. The applicant claimed EUR 15,000 in respect of costs and expenses incurred before the Court. He did not submit any documents to support his claim under this head. 61. The Government contested the amount. 62. Since the applicant submitted no justification as regards costs and expenses as required by Rule 60 of the Rules of Court, the Court makes no award under this head. C. Default interest 63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention in respect of the applicant. It found, in particular, that there was no reference in the case file to suggest that the applicant’s conduct had not been impartial and that the Turkish authorities had attached considerable importance to the fact that the applicant had followed or attempted to follow PKK-associated media. The Court therefore considered that the interference with the applicant’s freedom of expression had not been based on sufficient reasons and had not been necessary in a democratic society. |
953 | Restrictions on voting rights based on a residence criterion and exercise of the right to vote for non-resident citizens | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law and practice 1. The Greek Constitution of 1975 15. The relevant provisions of the Constitution read as follows. Article 1 “ ... 2. Popular sovereignty shall be the foundation of government. 3. All powers shall derive from the people and exist for the people and the nation; they shall be exercised as specified by the Constitution.” Article 51 (before the 2001 revision of the Constitution) “1. The number of members of parliament shall be defined by law. It shall not be below two hundred or above three hundred. 2. The members of parliament shall represent the nation. 3. The members of parliament shall be elected through direct universal suffrage and by secret ballot, by those citizens who have the right to vote, as specified by law. The law shall not curtail citizens’ right to vote except in cases where the statutory minimum age has not been attained, in cases of legal incapacity or in connection with a final criminal conviction for certain offences. 4. Parliamentary elections shall be held simultaneously throughout the country. The conditions governing the exercise of the right to vote by persons outside the country may be specified by statute. 5. The exercise of the right to vote shall be mandatory. Exceptions and criminal sanctions shall be specified in each case by law.” Article 54 “1. The electoral system and constituencies shall be specified by a law which will apply to the elections immediately following the forthcoming elections unless an explicit provision, adopted by a majority of two-thirds of the total number of members of parliament, stipulates that it is to apply as of the forthcoming elections. 2. The number of members of parliament elected in each constituency shall be specified by presidential decree on the basis of the population of the constituency for legal purposes, derived, according to the latest census, from the number of persons registered on the relevant municipal rolls, as provided for by law. The results of the census for this purpose shall be those published on the basis of the data held by the relevant department one year after the last day of the census. 3. Part of the Parliament, comprising not more than one-twentieth of the total number of its members, may be elected on a uniform nationwide basis in proportion to the total votes won by each party throughout the country, as specified by law.” Article 108 “1. The State must be attentive to the situation of emigrant Greeks and to the maintenance of their ties with the homeland. The State shall also attend to the education and the social and professional advancement of Greeks working outside the State. 2. The law shall lay down arrangements relating to the organisation, operation and competences of the World Council of Hellenes Abroad, whose mission is to allow the full expression of Hellenism worldwide.” The second paragraph of Article 108 was added during the 2001 revision of the Constitution. 16. In 2001, Article 51 § 4 was amended as follows: “Parliamentary elections shall be held simultaneously throughout the country. The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute, adopted by a majority of two-thirds of the total number of members of parliament. Concerning such persons, the principle of holding elections simultaneously does not rule out the exercise of their right to vote by postal vote or other appropriate means, provided that the counting of votes and the announcement of the results are carried out at the same time as within the country.” 2. The electoral legislation in force at the material time 17. At the time of the parliamentary elections in issue, Presidential Decree no. 96/2007, which was the electoral legislation then in force, provided as follows. Article 4 – Right to vote “1. Any Greek national aged 18 or over shall be entitled to vote. ...” Article 5 – Forfeiture of the right “The following persons shall lose the right to vote: (a) persons who have been placed under guardianship, in accordance with the provisions of the Civil Code; (b) persons whose final conviction for one of the offences provided for in the Criminal Code or the Military Criminal Code is accompanied by a measure disqualifying them from voting for the duration of their sentence.” Article 6 – Exercise of the right “1. The right to vote in a constituency shall be reserved to those persons registered on the electoral roll of a municipality or local authority area within that constituency. 2. The exercise of the right to vote shall be mandatory.” 3. Bill entitled “Exercise of the right to vote in parliamentary elections by Greek voters living abroad” 18. The report on this bill placed before Parliament by the Ministers of the Interior, Justice and the Economy on 19 February 2009 indicated that the purpose of the bill was to fulfil “one of the government’s major historical obligations, one which undeniably reinforces Greek expatriates’ ties with the homeland”. The report stated that voting rights for Greek nationals living abroad arose out of both Article 108 and Article 51 § 4 of the Constitution. It pointed out in particular that Article 108 “affords Greek expatriates a ‘social right’. This provision obliges the Greek State to take all necessary measures to maintain Greek expatriates’ ties with Greece, to ensure that they have access to Greek education and to make provision, as a matter of State duty, for the social and professional advancement of Greeks working outside Greece. Regulating the conditions for the exercise by Greek expatriates of their right to vote in Greek parliamentary elections will undeniably contribute to real ties being forged between Greek expatriates and their homeland.” Moving on to the constitutional provision on this specific subject, namely Article 51 § 4, the report characterised the statute to which that Article referred as a law implementing the Constitution. Lastly, the report considered that “in these times of globalisation, it is self-evident that Greek expatriates should have a decisive say in the development of their own country”. 19. The Scientific Council ( Επιστημονικό Συμβούλιο ) of Parliament is a consultative body reporting to the Speaker of Parliament. It comprises ten members, including professors of law, political science, economics, statistics and information technology, and an expert in international relations. It produced a report dated 31 March 2009 on the above-mentioned bill. The report noted that, in the past, some legal authorities had argued that Article 51 § 4 of the Constitution imposed upon the legislature an obligation to permit expatriate Greeks to exercise the right to vote from outside Greece. However, referring to other legal authorities and to the preparatory work for Article 51 § 4 of the Constitution, it asserted that it was an option rather than a duty for the legislature to permit the exercise of voting rights from abroad. It also took the view that the optional nature of the above-mentioned provision of the Constitution had not been affected by the 2001 constitutional revision. 20. On 7 April 2009 the bill was rejected by Parliament since it failed to secure the majority of two-thirds of the total number of members of parliament required under Article 51 § 4 of the Constitution. The members of parliament, especially those on the opposition benches, referred in particular to the number of Greek citizens living abroad compared with the numbers resident in Greece, and to the implications this would have for the composition of the legislature. B. International law and practice 1. Texts adopted by the Parliamentary Assembly of the Council of Europe 21. The relevant texts adopted by the Parliamentary Assembly of the Council of Europe read as follows. (a) Resolution 1459 (2005) of the Parliamentary Assembly of the Council of Europe – Abolition of restrictions on the right to vote “... 2. In accordance with the opinion of the European Commission for Democracy through Law (Venice Commission) adopted in December 2004, [the Parliamentary Assembly] ... invites the member and observer States of the Organisation to reconsider all existing restrictions to electoral rights and to abolish all those that are no longer necessary and proportionate in pursuit of a legitimate aim. 3. The Assembly considers that, as a rule, priority should be given to granting effective, free and equal electoral rights to the highest possible number of citizens, without regard to their ethnic origin, health, status as members of the military or criminal record. Due regard should be given to the voting rights of citizens living abroad. ... 7. Given the importance of the right to vote in a democratic society, the member countries of the Council of Europe should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems. They should take appropriate measures to facilitate the exercise of such voting rights as much as possible, in particular by considering absentee (postal), consular or e-voting, consistent with Recommendation Rec(2004)11 of the Committee of Ministers to member States on legal, operational and technical standards for e ‑ voting. Member States should cooperate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories. ... 11. The Assembly therefore invites: ii. invite the competent services of the Council of Europe, in particular the European Commission for Democracy through Law (Venice Commission) and its Council for Democratic Elections, to develop their activities aimed at improving the conditions for the effective exercise of election rights by groups facing special difficulties, such as expatriates, prison inmates, persons who have been convicted of a criminal offence, residents of nursing homes, soldiers or nomadic groups; THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 46. The applicants alleged that their inability to vote from their place of residence amounted to disproportionate interference with the exercise of their right to vote in the 2007 parliamentary elections, in breach of Article 3 of Protocol No. 1, which provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” A. The Chamber judgment 47. In its judgment of 8 July 2010, the Chamber held that there had been a violation of Article 3 of Protocol No. 1. It took the view that the present case did not concern the recognition of the applicants’ right to vote as such, which was already recognised under the Greek Constitution, but rather the conditions governing the exercise of that right by Greek nationals living abroad. On this point the Chamber noted that Article 51 § 4 of the Greek Constitution, adopted in 1975 and clarified during the 2001 constitutional revision, empowered the legislature to specify the conditions in question. Although the applicants still had the option of travelling to Greece in order to vote, in practice this complicated significantly the exercise of that right, as it entailed expense and disruption to their professional and family lives. 48. The Chamber acknowledged that Article 3 of Protocol No. 1 did not impose any obligation to secure voting rights in parliamentary elections to voters living abroad. However, the constitutional provision in question (Article 51 § 4) could not remain inapplicable indefinitely, depriving its content and the intention of its drafters of any normative value. Thirty-five years (at the time of the judgment) after the enactment of Article 51 § 4, the Greek legislature had still not given effect to its content. 49. The Chamber also held that the failure to enact legislation giving practical effect to voting rights for expatriates was likely to constitute unfair treatment of Greek citizens living abroad – particularly those living at a considerable distance – in comparison with those living in Greece, despite the fact that the Council of Europe had urged member States to enable their citizens living abroad to participate to the fullest extent possible in the electoral process. On the basis of a comparative study of the domestic law in thirty-three member States of the Council of Europe, the Chamber observed that the great majority had implemented procedures towards that end, and concluded that Greece fell short of the common denominator among member States in that regard. B. The parties’ submissions 1. The applicants 50. The applicants submitted that the right of Greek citizens to vote from abroad had first been recognised in 1862 in the election of members to the Second National Assembly, when Greek citizens had been able to vote from their places of residence abroad. A significant section of academic opinion on Greek constitutional law, and also the Greek courts, were of the view that a constitutional provision guaranteeing a right of such importance as the right to vote could not remain inapplicable indefinitely. The applicants pointed out in particular that, when faced with the same issue concerning Article 24 § 6 of the Constitution, which provided for the enactment of a law on measures restricting ownership rights for the purposes of protecting the cultural environment and on the manner in which owners were compensated, the full Supreme Administrative Court had held that, in so far as the legislature had not enacted the implementing law in question, “the authorities were under the obligation, arising directly out of the Constitution, to ensure the continuing protection of the monument and, simultaneously, to compensate the affected owner”. In the applicants’ view, the requirement for the Greek legislature to pass legislation in accordance with Articles 108 and 51 § 4 of the Constitution was binding and not optional. They submitted that the delay of thirty-six years, imputable to the Greek State, in giving effect to a specific provision of the Constitution and making effective the right of expatriates to vote from abroad amounted to a violation of Article 3 of Protocol No. 1. 51. In the applicants’ view, the stance taken by the Court in Hilbe v. Liechtenstein ((dec.), no. 31981/96, ECHR 1999 ‑ VI) was not relevant in the instant case. Unlike the applicant in that case, they were already registered on the electoral roll and their right to vote was explicitly recognised in domestic law. Hence, they were not complaining about a restriction on their right to vote as such, but about the failure to adopt the arrangements needed to give effect to that right. 52. The applicants stated that they followed political developments in their country of origin with particular interest and wished to maintain close ties with Greece. In particular, they pointed out that they were registered on the electoral roll in Greece, held valid Greek passports, owned immovable property in Greece on which they paid income tax and were still authorised to practise as lawyers in Greece. They maintained that being unable to vote in the Greek parliamentary elections from their State of residence constituted interference with their voting rights, in breach of both the Greek Constitution and the Convention. That interference arose out of the fact that they would have to travel to Greece in order to exercise their right to vote. The applicants acknowledged that they could fly to Samos and Thessaloniki, their respective home towns, for parliamentary elections. However, that possibility did not alter the substance of their claim, namely that they would thereby incur significant expense and that their professional and family life would be disrupted since they would be obliged to be away from their work and families for a few days. 53. In the applicants’ view, it was clear from the Council of Europe instruments, and in particular Parliamentary Assembly Resolution 1459 (2005), Recommendation 1714 (2005) and the Venice Commission’s Code of Good Practice in Electoral Matters, that member States were under an obligation to make the right to vote effective. They noted that, according to the study to which the Chamber referred in its judgment of 8 July 2010, at least twenty-nine Council of Europe member States guaranteed in practice the right of expatriates to vote from abroad in parliamentary elections. 2. The Government 54. The Government argued that the constitutionally recognised possibility of enacting legislation governing the exercise of the right to vote by voters living outside Greece could not be a decisive factor in determining whether there had been a violation of Article 3 of Protocol No. 1 in the present case. In particular, they stressed that Article 51 § 4 of the Constitution, far from imposing any obligation on the legislature, was optional in nature. Moreover, the Court’s case-law on Article 3 of Protocol No. 1 recognised that Contracting States had a wide margin of appreciation when it came to organising their electoral systems. The Government added that, in accordance with Article 51 § 4 of the Constitution, voting arrangements for Greek nationals outside Greece had to be adopted by a majority of two-thirds of Parliament; this confirmed the need to secure very broad political consensus on the subject in Greece. Furthermore, it had already attempted to pass a law in 2009 on voting rights for Greek expatriates, a fact which demonstrated the political will to find a solution to the problem. In the Government’s view, defining these arrangements was an extremely complex and delicate political issue. Blanket recognition of the right of expatriates to vote in parliamentary elections from their place of residence could give rise to considerable political and economic problems, not just in Greece but also in other member States of the Council of Europe. 55. The Government referred to the case-law of the Court and the former European Commission of Human Rights regarding the compatibility with Article 3 of Protocol No. 1 of measures making the right to vote subject to a residence requirement. They contended that, according to that case-law, imposing such a requirement was justifiable. They referred to the legitimate concern of the legislature to limit the influence of citizens living abroad in parliamentary elections, which focused primarily on issues affecting citizens living in the country. In the Government’s view, expatriates could not legitimately argue that they were affected by the decisions of the country’s political institutions to a greater extent than Greek citizens living in Greece. 56. Referring in particular to the parliamentary input into the 2001 revision of the Constitution, the Government observed that the legislation referred to in Article 51 § 4 of the Constitution continued to be optional. Although Article 51 § 4 made reference for the first time to postal voting, the latter was purely optional. Furthermore, the exercise of postal voting had to comply with the constitutional principle of simultaneous conduct of parliamentary elections. The Government also reiterated the reasons for requiring an enhanced two-thirds majority for enactment of the implementing legislation referred to in Article 51 § 4 of the Constitution, namely the need for political consensus in view of the considerable numbers of Greek citizens living abroad (some 3,700,000 persons compared with a population of 11,000,000 living in Greece). For instance, there were around 1,850,000 Greek citizens living in the United States and some 558,000 in Australia. Hence, according to the Government, the broadest possible consensus among the political parties was needed in order to prevent political tensions arising out of the de facto increase in the electorate. 57. The Government argued that Greek citizens who had their permanent residence abroad developed social, economic, political and cultural ties in their host country and that the main centre of their interests lay there. In addition, any comparison between Greece and other countries which had granted expatriates the right to vote from their place of residence had to take into account the specific features of each case, in particular the number of citizens living outside their country of origin, the socio-political context in each country and the electoral system in place. 58. The Government further submitted that the participation of expatriate Greeks in parliamentary elections could not be compared to the exercise of the right to vote in elections to the European Parliament. In the latter case, it was merely a matter of granting voting rights to a section of expatriate Greeks, namely those resident in member States of the European Union, an obligation arising directly out of European Union law and specifically provided for in domestic legislation. 59. To sum up, the Government pointed out that the applicants satisfied the requirements laid down by the electoral legislation for the purposes of exercising their right to vote in Greece. The issue of granting expatriates the right to vote from their place of residence fell within the margin of appreciation of the domestic authorities, who could decide how and when to grant that right. 3. The third-party intervener 60. The Hellenic League for Human Rights, established in 1953, is the oldest non-governmental organisation in Greece and a member of the International Federation for Human Rights. It noted the paradoxical situation with regard to voting rights for expatriates from their place of residence. While the right of expatriates to participate in the political decisions of the “motherland” was not disputed, the principle in question, which had acquired constitutional value, appeared to be ineffective: although ten years had elapsed since the constitutional revision of 2001, the constitutional requirement to adopt “postal voting” for Greeks resident abroad had not yet been enforced. 61. The debate on expatriates’ political rights hinged on two opposing ideas and the majority of positions and practices of States, with different variants and nuances, fell within the two extremes. The first was the idea of a political community based entirely on territory while the second was that of a community beyond territory, formed by links of solidarity which united the nation. The third-party intervener cited J. Habermas, according to whom the notion of the democratic self-determination of a community “require[d] that those who [were] subject to the law and those to whom the law [made] reference should consider themselves to be the creators of the law”. This quotation reflected a notion of the status of citizen that primarily viewed residence on a territory as the decisive criterion but took objective account of the fact that it was not absolutely necessary for individuals to reside on the territory of a State in order for them to feel that they had vital links with that State. There was an increasing realisation that “it [was] possible to live at home and far from home”. This transnational approach to citizenship rendered obsolete a debate on voting rights for expatriates based solely on a territorial understanding of citizenship. The fact that electoral campaigns were now conducted principally via computer-based social networks (such as Facebook and Twitter) proved that the argument of “distance” between the expatriate and his or her country of origin was no longer as relevant as it had been a few years previously. 62. In the view of the third-party intervener, the response to the dilemma of whether to grant political rights to expatriates could not be an “all or nothing” one. There was a need to define an objective criterion by which to assess whether or not expatriates had meaningful links with the Greek State and thus decide whether they should be included in the electorate. The League observed that in most member States of the European Union which provided for electoral rights for expatriates, the usual precondition was registration on the electoral roll of the State concerned at the embassy or consulate located in the region in question. Accordingly, the only objectively reliable criterion for the granting or otherwise of “a postal vote or other appropriate means” would appear to be whether or not electoral rolls existed at the overseas consulate. The response to the demands of the Greek diaspora to participate in Greek elections should be graduated in order to take account, in a proportionate and balanced manner, of the way in which the democratic process in the country of origin influenced the lives of expatriates. C. The Court’s assessment 1. General principles 63. The Court reiterates that Article 3 of Protocol No. 1 enshrines a characteristic principle of an effective political democracy and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47, Series A no. 113). This Article would appear at first to differ from the other provisions of the Convention and its Protocols, as it is phrased in terms of the obligation of the High Contracting Parties to hold elections under conditions which will ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom. However, having regard to the travaux préparatoires of Article 3 of Protocol No. 1 and the interpretation of the provision in the context of the Convention as a whole, the Court has held that it also implies individual rights, including the right to vote and the right to stand for election (ibid., § 51). It has also held that the standards to be applied for establishing compliance with Article 3 of Protocol No. 1 must be considered to be less stringent than those applied under Articles 8 to 11 of the Convention (see Ždanoka v. Latvia [GC], no. 58278/00, § 115, ECHR 2006 ‑ IV). 64. The concept of “implied limitations” under Article 3 of Protocol No. 1 is of major importance for the determination of the relevance of the aims pursued by the restrictions on the rights guaranteed by this provision (see Mathieu-Mohin and Clerfayt, cited above, § 52). Given that Article 3 of Protocol No. 1 is not limited by a specific list of “legitimate aims” such as those enumerated in Articles 8 to 11 of the Convention, the Contracting States are free to rely on an aim not contained in such a list to justify a restriction, provided that the compatibility of that aim with the principle of the rule of law and the general objectives of the Convention is proved in the particular circumstances of a case (see Ždanoka, cited above). Nevertheless, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions to which the right to vote and the right to stand for election are made subject do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they meet the requirements of lawfulness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Tănase v. Moldova [GC], no. 7/08, § 162, ECHR 2010, and Mathieu-Mohin and Clerfayt, cited above, § 52). 65. As regards, in particular, the choice of electoral system, the Court reiterates that the Contracting States enjoy a wide margin of appreciation in this sphere. In that regard, Article 3 of Protocol No. 1 goes no further than prescribing “free” elections held at “reasonable intervals”, “by secret ballot” and “under conditions which will ensure the free expression of the opinion of the people”. Subject to that reservation, it does not create any “obligation to introduce a specific system” such as proportional representation or majority voting with one or two ballots (see Mathieu-Mohin and Clerfayt, cited above, § 54). 66. There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into its own democratic vision (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 61, ECHR 2005 ‑ IX). For the purposes of applying Article 3 of Protocol No. 1, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another, at least so long as the chosen system provides for conditions which will ensure the “free expression of the opinion of the people in the choice of the legislature” (see Yumak and Sadak v. Turkey [GC], no. 10226/03, § 111, ECHR 2008). Furthermore, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any emerging consensus as to the standards to be achieved. In this regard, one of the relevant factors in determining the scope of the authorities’ margin of appreciation may be the existence or non-existence of common ground between the laws of the Contracting States (see Glor v. Switzerland, no. 13444/04, § 75, ECHR 2009). 67. It should also be noted that, in the context of Article 3 of Protocol No. 1, the primary obligation is not one of abstention or non-interference, as with the majority of civil and political rights, but one of adoption by the State of positive measures to “hold” democratic elections (see Mathieu-Mohin and Clerfayt, cited above, § 50). In this regard the Court also takes into consideration the fact that the right to vote, the “active” element of the rights under Article 3 of Protocol No. 1, is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion (see Hirst, cited above, § 59). 68. Accordingly, the exclusion from the right to vote of any groups or categories of the general population must be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see Ždanoka, cited above, § 105). The Court has held, inter alia, that domestic legislation making the right to vote subject to a minimum age or to residence conditions is, in principle, compatible with Article 3 of Protocol No. 1 (see Hirst, § 62, and Hilbe, both cited above). It has acknowledged that any general, automatic and indiscriminate departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates (see Hirst, cited above). 69. As regards restrictions on expatriate voting rights based on the criterion of residence, the Convention institutions have accepted in the past that these might be justified by several factors: firstly, the presumption that non-resident citizens are less directly or less continually concerned with their country’s day-to-day problems and have less knowledge of them; secondly, the fact that non-resident citizens have less influence on the selection of candidates or on the formulation of their electoral programmes; thirdly, the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected; and, fourthly, the legitimate concern the legislature may have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country (see Hilbe, cited above; see also X and Association Y v. Italy, no. 8987/80, Commission decision of 6 May 1981, Decisions and Reports (DR) 24, p. 192, and Polacco and Garofalo v. Italy, no. 23450/94, Commission decision of 15 September 1997, DR 90-A, p. 5). More recently, the Court has taken the view that having to satisfy a residence or length-of-residence requirement in order to have or exercise the right to vote in elections is not, in principle, an arbitrary restriction of the right to vote and is therefore not incompatible with Article 3 of Protocol No. 1 (see Doyle v. the United Kingdom (dec.), no. 30158/06, 6 February 2007). 2. Application of these principles to the present case 70. The Court observes at the outset that the applicants complained that the Greek legislature had not to date made the necessary arrangements enabling Greek expatriates to vote in parliamentary elections from their current place of residence. Accordingly, the complaint does not concern the recognition of expatriates’ right to vote as such, the principle of which is already recognised by Article 51 § 4 of the Greek Constitution in conjunction with Article 4 of Presidential Decree no. 96/2007, but rather the conditions governing the exercise of that right. Like the Chamber, the Grand Chamber is therefore of the view that its task consists in examining whether, despite the failure to enact legislation on the conditions for exercising the right to vote, the Greek electoral system, in the instant case, nevertheless permitted “the free expression of the opinion of the people” and preserved “the very essence of the ... right to vote”, as required by Article 3 of Protocol No. 1 (see Matthews v. the United Kingdom [GC], no. 24833/94, § 65, ECHR 1999 ‑ I). It will conduct its examination in the light of the broader question as to whether Article 3 of Protocol No. 1 places States under an obligation to introduce a system enabling expatriate citizens to exercise their voting rights from abroad. 71. In general terms, Article 3 of Protocol No. 1 does not provide for the implementation by Contracting States of measures to allow expatriates to exercise their right to vote from their place of residence. Nevertheless, since the presumption in a democratic State must be in favour of inclusion (see Hirst, cited above, § 59), such measures are consonant with that provision. The question is, however, whether Article 3 of Protocol No. 1 goes so far as to require them to be taken. In answering that question, Article 3 should be interpreted with reference to the relevant international and comparative law (see Yumak and Sadak, cited above, § 127, and Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 76 and 85, ECHR 2008) and to the domestic law of the country concerned. 72. Firstly, with regard to international law, the Court notes that neither the relevant international and regional treaties – such as the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the African Charter on Human and Peoples’ Rights – nor their interpretation by the competent international bodies provide a basis for concluding that voting rights for persons temporarily or permanently absent from the State of which they are nationals extend so far as to require the State concerned to make arrangements for their exercise abroad (see paragraphs 26-31 above). 73. It is true that, in order to give greater effect to the right to vote in parliamentary elections, the institutions of the Council of Europe have, inter alia, invited member States to enable their citizens living abroad to participate to the fullest extent possible in the electoral process. Hence, Resolution 1459 (2005) of the Parliamentary Assembly of the Council of Europe (see paragraph 21 above) states that member States should take appropriate measures to facilitate the exercise of voting rights to the fullest extent possible, in particular by means of postal voting. Furthermore, in Recommendation 1714 (2005), the Parliamentary Assembly invited the Council of Europe to develop its activities aimed at improving the conditions for the effective exercise of election rights by groups facing special difficulties, including expatriates. The Venice Commission, for its part, observed that since the 1980s the recognition of external voting rights had gained ground in Europe. While it also recommended that member States facilitate the exercise of expatriates’ voting rights, it did not consider that they were obliged to do so. Rather, it viewed such a move as a possibility to be considered by the legislature in each country, which had to balance the principle of universal suffrage on the one hand against the need for security of the ballot and considerations of a practical nature on the other (see, in particular, paragraph 25 above). 74. Furthermore, a comparative survey of the legislation of Council of Europe member States in this sphere shows that, while the great majority of them allow their nationals to vote from abroad, some do not (see paragraph 38 above). However, as regards those States which do allow voting from abroad, closer examination reveals that the arrangements for the exercise of expatriates’ voting rights are not uniform, but take a variety of forms. By way of example, some countries allow voting in polling stations set up abroad, and/or postal voting, proxy voting and e-voting (see paragraph 34 above). The length of residence abroad is another factor taken into consideration by member States. Some grant voting rights only to nationals temporarily resident outside the country, while in others expatriates lose the right to vote after a certain period of time (see paragraph 35 above). Furthermore, some Contracting States make provision for expatriates to elect their own representatives to the national parliament, in electoral constituencies set up outside the country (see paragraph 37 above). Lastly, in the majority of member States which allow voting from abroad, persons wishing to avail themselves of this facility must register by a certain deadline on the electoral roll with the authorities in their country of origin or the diplomatic or consular authorities abroad (see paragraphs 39 ‑ 45 above). 75. In short, none of the legal instruments examined above forms a basis for concluding that, as the law currently stands, States are under an obligation to enable citizens living abroad to exercise the right to vote. As to the arrangements for exercising that right put in place by those Council of Europe member States that allow voting from abroad, there is currently a wide variety of approaches. 76. Secondly, with regard to the domestic legislation in issue in the present case, the Court observes that Article 51 § 4 of the Constitution provides that “[t]he conditions governing the exercise of the right to vote by persons outside the country may be specified by statute ...”. The Scientific Council of Parliament, for its part, stated, in its report of 31 March 2009 on the bill concerning the exercise of the right to vote in parliamentary elections by Greek voters living abroad, that permitting the exercise of the right to vote from abroad was an option rather than a duty for the legislature, while stressing that legal opinion was not unanimous on the subject (see paragraph 19 above). In conclusion, it would appear that while Article 51 § 4 of the Constitution allows the legislature to give effect to the exercise of voting rights for expatriate Greeks from their place of residence, it does not oblige it to do so. Accordingly, and having regard to the considerations outlined above (see paragraph 75), the Court is of the view that it is not its task to indicate to the national authorities at what time and in what manner they should give effect to Article 51 § 4 of the Constitution. 77. Furthermore, since 2000, the Greek authorities have made several attempts to give effect to the provisions of Article 51 § 4. During the 2001 constitutional revision, for instance, the content of these provisions was clarified and it was stated that the principle of simultaneous voting did not rule out the exercise of voting rights by postal vote or other appropriate means, provided that the counting of votes and the announcement of the results were carried out at the same time as within the country (see paragraph 16 above). 78. Mention should also be made of the initiative taken in 2009 aimed at enacting the legislation provided for by Article 51 § 4 of the Constitution, in the form of a bill placed before Parliament on 19 February 2009 by the Interior, Justice and Economics Ministers laying down the arrangements for the exercise of voting rights in parliamentary elections by expatriate Greek voters. The bill was not passed as it failed to secure the two ‑ thirds majority of the total number of members of parliament required by Article 51 § 4 of the Constitution as amended following the 2001 constitutional revision. 79. Lastly, as regards the specific situation of the applicants, the Court has no reason to doubt their assertion that they maintain close and continuing links with Greece and follow political, economic and social developments in the country closely, with the aim of playing an active part in the country’s affairs. The presumption that non ‑ resident citizens are less directly or less continually concerned with the country’s day-to-day problems and have less knowledge of them (see paragraph 69 above) does not therefore apply in the instant case. Nevertheless, in the Court’s view, this is not sufficient to call into question the legal situation in Greece. In any event, the competent authorities cannot take account of every individual case in regulating the exercise of voting rights, but must lay down a general rule (see Hilbe, cited above). 80. As to the disruption to the applicants’ financial, family and professional lives that would have been caused had they had to travel to Greece in order to exercise their right to vote in the 2007 parliamentary elections, the Court is not convinced that this would have been disproportionate to the point of impairing the very essence of the voting rights in question. 3. Conclusion 81. Having regard to the foregoing considerations, it cannot be said that the very essence of the applicants’ voting rights guaranteed by Article 3 of Protocol No. 1 was impaired in the instant case. Accordingly, there has been no breach of that provision. | The Court held that there had been no violation of Article 3 of Protocol No. 1 to the Convention, as the disruption to the applicants’ financial, family and professional lives that would have been caused had they had to travel to Greece would not have been disproportionate to the point of impairing the very essence of their voting rights. The Court notably found that neither the relevant international and regional law nor the varying practices of the Member States in this sphere had revealed any obligation or consensus which would require States to make arrangements for the exercise of voting rights by citizens living abroad. |
596 | Case-law of the European Court of Human Rights | THE LAW I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 34. Relying on Article 6 of the Convention, the applicant complained that the Supreme Administrative Court had failed to examine his complaint that there had been a violation of Article 9 of the Convention in that the special committee considering his case had been composed of a majority of military officers, who, in the applicant ’ s submission, were inherently ill-disposed towards conscientious objectors. Relying on Article 9 of the Convention, he complained that his application had not been examined in proper or impartial conditions, as the absence of two of the members of the committee had, in his view, resulted in an erroneous interpretation of his beliefs and the rejection of his application. Lastly, relying on Article 9 taken together with Article 11 of the Convention, he alleged that the rejection of his application for conscientious objector status constituted a breach of his negative freedom not to be a follower of a particular religion or a member of an anti-militarist organisation. 35. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see, for example, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012). In the present case, it considers that the procedure followed by the armed forces ’ special committee and the reasoning adopted by the Supreme Administrative Court on this matter might raise an issue under Article 9 of the Convention. Accordingly, it considers that the applicant ’ s complaints should be examined under Article 9 alone, which provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” ... B. Merits 1. The parties ’ submissions (a) The applicant 39. The applicant stated that unlike the applicant in Kosteski v. the former Yugoslav Republic of Macedonia (no. 55170/00, 13 April 2006), who had had to prove a fact, he himself had had to demonstrate a belief by means of a procedure established by the State. He submitted that conscientious objectors were not only militants, people who publicly promoted their ideas or members of religious organisations, and that everyone was free to choose not to make their beliefs public and not to belong to organisations. Moreover, people adhering to the same fundamental principles might have deeply and sincerely held beliefs that were completely different. 40. The applicant further submitted that the State should apply a presumption of sincerity to a declaration of conscientious objection, as would be the case for the presumption of innocence or a tax declaration. In Greece, the authorities had adopted objective and easily applicable criteria for testing the sincerity of stated beliefs, namely increasing the duration of alternative service and requiring it to be carried out away from the place of residence. The authorities also had to take into account the way in which the individual concerned had acquired and developed such beliefs, and the consistency in the individual ’ s attitude between the acquisition of the beliefs and the final decision by the appropriate authority. The applicant maintained that he had satisfied all the conditions for being granted conscientious objector status, but that the special committee ’ s assessment of some of his statements had been incorrect. 41. The applicant also contended that the mechanism established by section 62 of Law no. 3421/2005 was not compatible with Recommendation no. R( 87)8 of the Committee of Ministers of the Council of Europe. In that connection he criticised the close relationship between the special committee and the military command and asserted that the decisive final step in the procedure was ultimately the responsibility of the military authorities. Relying on the Court ’ s case-law concerning the impartiality of Turkish military courts, and also on the comments of the Greek National Commission for Human Rights on the draft legislation concerning conscientious objectors ..., he submitted that the special committee ’ s lack of impartiality and independence was blatant in his case. 42. Lastly, the applicant asserted that all, or the vast majority, of the 158 applications accepted by the special committee in 2013 had been submitted by Jehovah ’ s Witnesses playing an active role within their community. The fourteen applications that had been rejected had been submitted by conscientious objectors who, like him, were motivated by ideological reasons, and their rejection was unsurprising given the committee ’ s consistent practice, which had been heavily criticised by Amnesty International and other human rights organisations. (b) The Government 43. The Government stated at the outset that the applicant ’ s particular case differed from the situation in Bayatyan [ v. Armenia [GC], no. 23459/03, ECHR 2011], which he had relied on in his application to the Court. They were unable to accept the applicant ’ s argument that the special committee established by section 62 of Law no. 3421/2005 lacked impartiality. The members of the committee enjoyed equal status and the absence of two of them during the examination of the applicant ’ s application could not have had affected the quorum or distorted the nature of the committee. Even assuming that the two members in question had been present and had voted in his favour, there was nothing to support the conclusion that the committee ’ s decision would have been different. 44. The Government further contended that it was arbitrary for the applicant to maintain that it was predictable that the two officers would reject his application on the grounds that they were inherently prejudiced against conscientious objectors. Referring to a document produced by the Ministry of National Defence, the Government stated that in 2013 the special committee had examined 172 similar applications to the one submitted by the applicant and had accepted 158 of them. In 97 of the 158 cases, there had been a majority of military members sitting on the committee ( two officers and the adviser of the State Legal Council ), and in 61 cases the composition had been balanced ( two officers, one university professor and the adviser of the State Legal Council ). With that in mind, the applicant could have asked for his application to be reconsidered by the committee with all its members sitting. 45. In addition, the Government submitted that the record of the applicant ’ s interview ( see paragraph 9 above ) showed that the members of the committee had set out to assess the sincerity and seriousness of his beliefs, and that to that end they had asked him a series of fundamental questions to which he had not given clear and convincing answers. The applicant ’ s argument that the special committee should have reached a different conclusion on the grounds that he had been raised by a Jehovah ’ s Witness mother and an atheist father was unconvincing, and he had failed to prove that he had stable and sincere beliefs preventing him from performing armed service. 46. The Government also contended that the applicant was unfounded in arguing that the proof of a conscientious objector ’ s beliefs was established by his leading a peaceful and law-abiding life. Allowing such an approach would produce an absurd result, namely that the vast majority of men who did not possess weapons and had never been involved in acts of violence would be exempted from their military obligations. 47. Lastly, the Government objected to the applicant ’ s argument that the procedure established by section 62 of Law no. 3421/2005 was incompatible with the requirements of the Convention. In their submission, a general complaint about the practical implementation of that procedure was not sufficient to establish that it was defective or that there had been any specific lack of impartiality in the applicant ’ s case. ( c ) Alliance Defending Freedom International, third-party intervener 48. ADF International highlighted the pre-eminence of freedom of conscience, which was recognised not only in the major human rights treaties and the corresponding case-law but also in national legislation and judicial practice and in various international instruments adopted by the Council of Europe, the European Union and the United Nations. 49. ADF International acknowledged that it was difficult in practice for the domestic courts to assess whether a claim relating to a belief was genuine. However, it stated that the Court had already set up a framework for evaluating such claims and noted that the question was whether an individual opposed to the obligation to perform military service was placed in a serious conflict between that obligation and his or her genuinely and deeply held religious or other convictions and was thus forced to act against the dictates of his or her conscience. ADF International submitted that the first prong of the test to be carried out to that end served as an initial threshold: the conflict arising had to reach a certain level of seriousness. The second prong of the test consisted in examining whether the belief was genuinely and deeply held: the convictions asserted by the individual had to be based on a set of identifiable and sincerely expressed values. The third prong involved an assessment of the nature of the conflict, and in particular, whether it had a moral dimension. Such an assessment was in the nature of things subjective and amounted to determining what was required of the individual seeking conscientious objector status. 2. The Court ’ s assessment 50. The Court observes that the rejection of the applicant ’ s application for conscientious objector status may be regarded as interference with his right to freedom of thought and conscience as safeguarded by Article 9 of the Convention. 51. The Court further notes that it has frequently held that under Article 8 of the Convention, the State ’ s positive obligation inherent in effective respect for private life may involve the provision of an effective and accessible means of protecting the right to respect for private life (see Airey v. Ireland, 9 October 1979, § 33, Series A no. 32; McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998-III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005-X), and in particular the introduction of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where relevant, of appropriate special measures. While the boundaries between the State ’ s positive and negative obligations under the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar (see Fernández Martínez v. Spain [GC], no. 56030/07, § 114, ECHR 2014 (extracts) ). 52. In Savda v. Turkey ( cited above, § 98) the Court held that these principles could be applied mutatis mutandis to the right to conscientious objection to compulsory military service, given that in the absence of a procedure for examining claims for conscientious objector status, such service was likely to entail a serious and insurmountable conflict between the obligation to perform it and an individual ’ s conscience or genuinely and deeply held beliefs. The Court concluded that there had been a positive obligation on the authorities to provide the applicant with an effective and accessible procedure for establishing whether he was entitled to conscientious objector status, with a view to preserving his interests as protected by Article 9 (ibid., § 99). 53. The Court notes at the outset that, contrary to the situation in Turkey that gave rise to its Savda judgment (cited above) and the other judgments mentioned above (see paragraph 36 ), there was a legal framework in Greece at the material time governing conscientious objector status and an alternative to armed service. Although the Constitution does not enshrine a general right to exemption from military service, the interpretative declaration concerning Article 4 § 6 of the Constitution states that the paragraph in question does not exclude the possibility of a law providing for the compulsory performance of other types of service, whether within or outside the armed forces ( alternative service), by anyone with a justified conscientious objection to performing armed or general military service. To that end, Law no. 3421/2005 was enacted, placing conscientious objectors at the disposal of various public services further to a decision taken by the Minister of National Defence after obtaining the opinion of a special committee responsible for examining, either on the basis of documentary evidence or after interviewing the individual concerned, whether the requirements for granting conscientious objector status are satisfied. 54. It is not disputed that the purpose of the procedure before the special committee under section 62 of Law no. 3421/2005 is to assess the seriousness of the individual ’ s beliefs and to thwart any attempt to abuse the possibility of an exemption on the part of individuals who are in a position to perform their military service. The Court acknowledges the value of an interview of this kind, seeing that the risk that certain conscripts might pretend to be conscientious objectors cannot be entirely ruled out. 55. In some of the Turkish cases cited above, the Court held that the applicants ’ doubts about the independence and impartiality of the Turkish military courts that had tried them were objectively justified. It found that it was understandable that a conscientious objector standing trial for strictly military offences before an exclusively military court should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings, and that the individual concerned could legitimately have feared that the court might allow itself to be unduly influenced by partial considerations ( see, for example, Feti Demirtaş, cited above ). 56. In the present case, the situation was different. It involved appearing before a committee that was not called upon to impose a penalty for a breach of military discipline, as in the case of the Turkish courts, but to determine, prior to an individual ’ s enlistment, whether or not he should be granted conscientious objector status. 57. The Court notes that in his answers to the committee, the applicant attempted to substantiate his beliefs and declared himself willing to perform alternative service for fifteen months instead of nine months, the normal duration of armed service. After the failure of his attempt to convince the committee, he again asserted his conscientious objection by appealing to the Supreme Administrative Court against the decision by the Minister of National Defence to refuse his application, by paying the fine of 6, 000 euros after that court found against him and by accepting the risk of a prison sentence for insubordination. 58. The Court observes that the applicant ’ s main complaint is that some of the statements which he made to the committee – in particular, those to the effect that submitting to authority was an obligation and that self-defence was not a form of violence – were misinterpreted by the members present, who were senior officers. It reiterates that it is not its task to evaluate the meaning of the applicant ’ s statements and the way in which the members of the committee interpreted them, this being first and foremost the role of the national authorities ( see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, ECHR 2011). 59. Section 62 of Law no. 3421/2005 provides that when the special committee examines applications for exemption from armed military service for conscientious objectors, it should be composed of two university professors specialising in philosophy, social and political sciences or psychology, a senior or other adviser of the State Legal Council, and two senior officers of the armed forces, one from the recruitment corps and one from the medical corps. It is clear that special precautions have been taken to ensure that the committee includes an equal number of military officers and civil-society representatives with specialist knowledge in the field, and is chaired by a legal expert. A number of substitutes equal to the number of full members are also appointed for the same duration. 60. In this connection, the Court reiterates that the positive obligation on States in accordance with its judgments in Bayatyan and Savda ( both cited above) is not confined to ensuring that their domestic legal system includes a procedure for examining applications for conscientious objector status. It also encompasses the obligation to provide for an effective and accessible investigation into such matters ( see Savda, cited above, § 99). One of the fundamental conditions for an investigation to be considered effective is the independence of the individuals conducting it. 61. The Court notes in the present case that if all the members of the special committee had been present at the time when it interviewed the applicant, the majority would have been civilians : two university professors specialising in social sciences and the adviser of the State Legal Council (acting as chairman), as against two high-ranking army officers. However, only the chairman and the two officers were present on that date. In the Court ’ s view, the applicant could legitimately have feared that, since he was not a member of a religious community, he would not succeed in conveying his ideological convictions to career officers with senior positions in the military hierarchy. 62. In this connection, the Court observes that in his recommendation of 2013 the Greek Ombudsman pointed out that, while for conscientious objectors classified as “religious”, the special committee required no more than a certificate from the religious community concerned and did not even call them to an interview, “ideological” objectors were often required to answer questions concerning sensitive personal information ... 63. For the letter and the spirit of section 62 of Law no. 3421/2005 to be observed, the Court considers that if certain members of the committee are unable to attend when it is due to interview a conscientious objector, arrangements should be made so that it can meet in the conditions of equal representation laid down in the provision in question. 64. Admittedly, the committee ’ s decision is merely an opinion which is transmitted to the Minister of National Defence, who takes the final decision on the request by the objector to perform alternative service. Article 3 of the Minister of National Defence ’ s implementing decision, entitled “Alternative service for conscientious objectors”, provides that, following the deliberations and the drafting of the record, the committee ’ s rapporteur sends the file to the recruitment corps at the armed forces headquarters, after which it is transmitted to the Minister of National Defence, with a draft ministerial decision appended in accordance with the committee ’ s proposal. ... That being so, the Minister likewise does not afford the requisite guarantees of impartiality and independence to reassure a conscientious objector who has been interviewed, as in the present case, by a committee made up of a majority of high-ranking army officers. 65. As to the scrutiny performed by the Supreme Administrative Court in the event of an appeal against the Minister of National Defence ’ s decision, it extends only to the lawfulness of the decision and not to the merits of the case, and is based on the assessments made by the members of the special committee. 66. Having regard to the foregoing, the Court considers that the competent authorities failed, in the circumstances of the case, to comply with their positive obligation under Article 9 of the Convention to ensure that interviews of conscientious objectors by the special committee are conducted in conditions guaranteeing procedural efficiency and the equal representation required by section 62 of Law no. 3421/2005. There has therefore been a violation of that Article. ... | The Court held that there had been a violation of Article 9 of the Convention, finding that the applicant did not enjoy the necessary procedural safeguards in having his request for alternative civilian service examined. The Court considered in particular that the Greek authorities had failed in their duty to ensure that the interviewing of conscientious objectors by the army’s Special Board took place in conditions that guaranteed procedural efficiency and the equal representation required by domestic law. In this respect, it noted that: the applicant had been interviewed by a Board made up primarily of servicemen, two of the civilian members of the Board being absent but not replaced; the Minister of Defence’s final decision, on the basis of a draft ministerial decision following the Board’s proposal, did not afford the requisite safeguards of impartiality and independence; the scrutiny of the Supreme Administrative Court concerned only the lawfulness of the decision, not the merits, and was based on the assessments of the Special Board. |
1,067 | Right to a fair trial (Article 6 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Supplementary-tax proceedings and tax-evasion proceedings 35. Supplementary-tax proceedings ( Nachsteuerverfahren ) serve the purpose of imposing a supplementary tax ( Nachsteuer ) where certain taxes have not been duly paid. Tax-evasion proceedings ( Steuerhinterziehungsverfahren ) may lead, in addition to the supplementary tax, to a fine the amount of which will depend on the amount of the tax evaded. B. Decree of the Federal Council on the imposition of a direct federal tax 36. The Federal Council’s decree of 1940 on the imposition of a direct federal tax in force at the relevant time referred in its Part 9 to “contraventions” ( Widerhandlungen ). 37. Articles 129 and 130 in Part 9 concerned “tax evasion” and provided for liability to a fine. For instance, Article 129 § 1 concerned persons who evaded taxes by not filling in the tax return correctly. Article 130 bis concerned “tax and inventory fraud” ( Steuer- und Inventarbetrug ) and provided for liability to a fine or to imprisonment. 38. Article 131 § 1 of the decree stated: “A person ... liable to pay taxes or to give information who contravenes, intentionally or negligently, the official decisions and orders made pursuant to this Decree, in particular as to: – handing in a tax return; – submitting or presenting accounts, preparing or submitting vouchers and other receipts; – complying with a summons or a prohibition to act; – giving information; or – making payments and furnishing securities; will be fined between CHF 5 and 10,000. The same punishment will be incurred if the obligation under Article 90 §§ 5, 6 and 8 to provide information is not complied with.” 39. Article 90 §§ 5, 6 and 8 of the federal decree concerned the obligation, inter alia, of third parties to provide information. Article 89 stated that the taxpayer should provide truthful information and that he could be requested to submit documents etc. which might be relevant for the assessment of taxes. Article 132 regulated the procedure in case of tax evasion and provided that the cantonal tax administration would undertake any necessary investigations. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 40. The applicant alleged that the proceedings in which he was involved were unfair in that he was obliged to submit documents which could have incriminated him. He relied on Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ...” 41. The Government contested that submission. A. Applicability of Article 6 § 1 1. The parties’ submissions (a) The applicant 42. The applicant submitted that the proceedings at issue concerned both the imposition of a supplementary tax and tax-evasion proceedings leading to a fine. The former matter did not fall within the scope of the Convention whereas, according to the case-law of both the Court and the Federal Court, the tax-evasion proceedings amounted to criminal proceedings within the meaning of Article 6 § 1 of the Convention, requiring the necessary guarantees. Reference was made in particular to A.P., M.P. and T.P. and E.L., R.L. and J.O.-L. v. Switzerland (judgments of 29 August 1997, Reports of Judgments and Decisions 1997 ‑ V, pp. 1487-88 and pp. 1519-20 respectively). The amount of the fine for tax evasion was determined on the basis of the amount of supplementary tax. In his case, the fine of CHF 21,625.95 imposed on him had the same effect as a criminal conviction. (b) The Government 43. In the Government’s opinion, the proceedings at issue were sui generis, although they bore a closer resemblance to administrative proceedings than to criminal proceedings. The Federal Court had accepted that Article 6 of the Convention applied to such proceedings, without stating that they determined a “criminal charge”. In the Government’s view, when deciding on the applicability of this provision, it had to be considered which type of “criminal charge” was at issue. In such proceedings, both a person’s taxes and any tax evasion were examined in one and the same, mixed procedure. To the extent that the proceedings concerned the determination of a supplementary tax, they involved no criminal element. On the other hand, to the extent that a fine could be imposed for tax evasion, the proceedings were of a criminal nature within the meaning of Article 6 § 1 of the Convention. In the present case, Article 6 § 1 of the Convention was not applicable to the proceedings at issue. The Government referred in particular to M.-T.P. v. France ((dec.), no. 41545/98, 7 March 2000, unreported) in which, as in the present case, that applicant was not prosecuted for tax evasion. In that case, moreover, the Court had considered that the tax measures imposed on the applicant were not criminal as they did not attain the necessary level of prejudice. 2. The Court’s assessment 44. The Court reiterates that the concept of “criminal charge” within the meaning of Article 6 is an autonomous one. In its earlier case-law the Court has established that there are three criteria to be taken into account when it is being decided whether a person was “charged with a criminal offence” for the purposes of Article 6. These are the classification of the offence under national law, the nature of the offence and the nature and degree of severity of the penalty that the person concerned risked incurring (see, among other authorities, Öztürk v. Germany, judgment of 21 February 1984, Series A no. 73, p. 18, § 50). In A.P., M.P. and T.P. v. Switzerland (cited above), the Court moreover found that proceedings leading to the imposition of a fine on account of the criminal offence of tax evasion fell in principle to be examined under Article 6 § 1 of the Convention. 45. In the present case it was not in dispute between the parties that any tax-evasion proceedings instituted against the applicant, inasmuch as they determined a “criminal charge” within the meaning of Article 6 of the Convention, would fall to be examined under this provision. 46. The Government, however, contended that the proceedings in the present case were of a sui generis nature and outside the scope of Article 6 of the Convention. The Federal Court, on the other hand, considered in its judgment of 7 July 1995 that Article 6 of the Convention applied to the proceedings in question. 47. The Court observes that, in the present case, the proceedings served the various purposes of establishing the taxes due by the applicant and, if the conditions therefor were met, of imposing on him a supplementary tax and a fine for tax evasion. Nevertheless, the proceedings were not expressly classified as constituting either supplementary-tax proceedings or tax-evasion proceedings. 48. The Court furthermore considers, and this was not in dispute between the parties, that from the beginning and throughout the proceedings the tax authorities could have imposed a fine on the applicant on account of the criminal offence of tax evasion. According to the settlement reached on 28 November 1996, the applicant did indeed incur such a fine amounting to CHF 21,625.95. The penalty was not, however, intended as pecuniary compensation; rather, it was essentially punitive and deterrent in nature. Moreover, the amount of the fine incurred was not inconsiderable. Finally, there can be no doubt that the fine was “penal” in character (see A.P., M.P. and T.P. v. Switzerland, cited above). 49. In the Court’s opinion, whatever other purposes served by the proceedings, by allowing the imposition of such a fine on the applicant, the proceedings amounted in the light of the Court’s case-law to the determination of a criminal charge. 50. As a result, the Court finds that Article 6 is applicable under its criminal head. 51. Accordingly, the question arises as to whether Article 6 § 1 of the Convention was complied with. B. Compliance with Article 6 § 1 1. The parties’ submissions (a) The applicant 52. The applicant contended that the right to remain silent in criminal proceedings guaranteed by Article 6 § 1 of the Convention was breached as he had been punished for remaining silent. A procedure in which the fine determined for tax evasion depended on the amount of supplementary tax, and in which both proceedings were decided by the same authorities, could not be considered fair. 53. In the applicant’s opinion, it was clear that in his case the authorities suspected the existence of further items of income and assets which they could not prove, for which reason they requested information on all bank documents. The applicant queried why the authorities, if they already knew everything about his investments, asked for the documents in question. The fines served as a substitute for the tools normally at the disposal of criminal investigating authorities, and were disproportionate. They were particularly high when compared with the amounts imposed in Funke (cited above, p. 22, § 44). The applicant submitted that he had not been in a position to submit the documents at issue as they either had already been destroyed or were deposited with third parties, in particular with banks which were not obliged to hand over the documents. 54. The applicant considered that requiring the information amounted to “fishing expeditions” on the part of the authorities. When the applicant refused to supply the information, he was punished with a fine, contrary to Article 6 § 1 of the Convention. It was up to the authorities to prove any criminal conduct on his part, and he was entitled to remain silent. In fact, the authorities had originally promised the applicant that they would not undertake further investigations if he admitted the amounts, and it was unfair to then request further documents in the hope of finding additional taxable income and assets. 55. The applicant was aware that he would be fined for tax evasion. However, as the amount of the fine depended on the amount of the supplementary tax rather than the applicant’s culpability, the authorities sought to establish further tax debts as this would have enabled them to impose a higher fine. In the applicant’s view it was unclear why in tax-evasion proceedings, in which fines of millions of Swiss francs were imposed, other principles should apply than those in regular criminal proceedings. In fact, the new Tax Act of the Canton of Berne separated these two proceedings if the taxpayer did not agree to combine them. This separation was not considered impracticable. 56. Finally, in respect of the agreement reached between the applicant and the tax authorities after the Federal Court’s decision of 7 July 1995, the applicant pointed out that the fines imposed for refusing to submit information had not been included. In view of the enormous sum involved in the settlement – over CHF 80,000 – it could not be said that the agreement amounted to an acquittal of the applicant. (b) The Government 57. The Government contended that the guarantees of Article 6 § 1 had been complied with. Thus, there was no difference between proceedings concerning taxation and those concerning tax evasion. The obligation to submit further information applied equally to both proceedings and served the purpose of determining the tax debt, in particular the amount of taxable items which the person concerned had not declared. A breach of the obligation to submit information led to a fine under Article 131 § 1 of the decree of the Federal Council. This fine, which could be imposed in either kind of proceedings, had to be distinguished from the fine resulting from tax evasion. In the present case, the proceedings originally instituted against the applicant concerned tax evasion in view of the fact that the applicant had declared neither certain investments with P. nor the resulting income. When the applicant failed to submit the requested information, a disciplinary fine was imposed on him in accordance with Article 131 § 1 of the decree of the Federal Council. 58. The Government submitted that in 1987, when the tax-evasion proceedings were instituted against the applicant, the tax authorities were aware of the investments made with P. as well as the resulting income for the years 1979-85. The applicant himself had referred to these amounts on 22 December 1987. It was clear that the applicant’s fortune could not have been obtained in any other manner than by means of undeclared income. From the beginning, the tax authorities could have imposed a fine on the applicant for tax evasion, even without punishing him for not submitting the necessary information in accordance with Article 131 § 1 of the decree of the Federal Council. The subsequent requests by the tax authorities concerned information of which they were already aware. The requests had as their only purpose the clarification of the source of the amounts invested with P., which would have permitted the determination of the amount of back-payment of taxes. The documents requested from the applicant would have served to confirm this knowledge rather than to obtain the applicant’s conviction. 59. The Government considered that in such cases, as a matter of political choice, the tax authorities had no powers of investigation, so as not to penalise the person concerned. They could not search a person’s premises, confiscate objects, hear witnesses or order detention. Bank secrecy remained intangible. To compensate for these shortcomings, the authorities could oblige a person to furnish relevant documents. The fine provided for in Article 131 of the federal decree was the only coercive measure left to the authorities. In this respect, the Government distinguished the present case from Funke (cited above) and Bendenoun v. France (judgment of 24 February 1994, Series A no. 284), where the French authorities imposed more severe fines and had far-reaching powers, such as that of searching premises and confiscating documents. 60. The Government submitted that a separation of the proceedings as practised, for instance, in Germany – regular tax proceedings, on the one hand, and criminal tax-evasion proceedings, on the other – would be impractical as the administration would have to conduct two different sets of proceedings, and the taxpayer would have to defend himself twice. The additional problem arose as to whether or not information gathered in the regular tax proceedings could be used in the criminal proceedings. Indeed, if a breach of Article 6 of the Convention were to be found in the present case, the legislative changes would be disproportionate and would not serve the cause of human rights, since the tax authorities would be obliged to resort to all the means normally reserved for the criminal investigation organs. 61. In the Government’s view, it could not be said that the authorities went out on a “fishing expedition”. To the extent that the applicant had himself admitted the amounts which he had not declared, without having been obliged to do so, the tax authorities could not be reproached with having breached his right to remain silent and not to incriminate himself. In this respect also the present case differed from Funke (cited above, p. 22, § 44). While it could not be excluded that the information provided by the applicant on 22 December 1987 was incomplete, the authorities did not automatically presume such an offence. With reference, mutatis mutandis, to Condron v. the United Kingdom (no. 35718/97, § 55, ECHR 2000-V), the Government concluded that the requests for information did not breach the requirements of a fair trial. 62. Finally, the Government drew attention to the settlement reached between the applicant and the tax authorities after the Federal Court’s decision of 7 July 1995. The back-payments of taxes mentioned therein in respect of the years 1981 to 1988 were known to the authorities from the beginning of the proceedings, and the fine imposed on the applicant amounted to two-thirds of the back-payments of taxes. On the other hand, the tax authorities had not taxed the undeclared amounts which the applicant had invested with P. 2. The Court’s assessment 63. The Court recalls at the outset that in proceedings originating in an individual application it has to confine itself, as far as possible, to an examination of the concrete case before it (see Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, p. 17, § 35). Accordingly, what is at stake in the present case is not the fairness of the proceedings as such which were instituted against the applicant. Rather, the Court is called upon to examine whether or not the imposition of a fine on the applicant for having failed to provide certain information complied with the requirements of the Convention. It follows that the Court is not deciding in the present case the issue whether a State can oblige a taxpayer to give information for the sole purpose of securing a correct tax assessment. 64. Although not specifically mentioned in Article 6 of the Convention, the right to remain silent and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 § 1. The right not to incriminate oneself in particular presupposes that the authorities seek to prove their case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the “person charged”. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and securing the aims of Article 6 (see Funke, cited above; John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, p. 49, § 45; Saunders v. the United Kingdom, judgment of 17 December 1996, Reports 1996-VI, pp. 2064-65, §§ 68-69; and Serves v. France, judgment of 20 October 1997, Reports 1997 ‑ VI, pp. 2173-74, § 46). 65. In the present case, when on 11 December 1987 the X District Office instituted tax-evasion proceedings against the applicant, he was requested to submit all documents concerning the companies in which he had invested money. When the applicant failed to do so, he was requested on three further occasions to declare the source of the income invested. The applicant not having reacted to these requests, a disciplinary fine of CHF 1,000 was imposed on him on 28 February 1989. After four additional admonitions, a second disciplinary fine, of CHF 2,000, was imposed on the applicant. The latter fine he eventually contested unsuccessfully before the Federal Court. Subsequently he received two further disciplinary fines. 66. Thus, it appears that the authorities were attempting to compel the applicant to submit documents which would have provided information as to his income with a view to the assessment of his taxes. Indeed, according to the Federal Court’s judgment of 7 July 1995, it was in particular important for the authorities to know whether or not the applicant had obtained any income which had not been taxed. While it is not for the Court to speculate as to what the nature of such information would have been, the applicant could not exclude that, if it transpired from these documents that he had received additional income which had not been taxed, he might be charged with the offence of tax evasion. 67. It is true that the applicant and the authorities reached an agreement on 28 November 1996 which closed various tax and criminal tax proceedings, including proceedings concerning disciplinary fines. However, the agreement expressly excluded the present application before the European Court which is directed against the judgment of the Federal Court of 7 July 1995 concerning the disciplinary fine imposed on the applicant on 29 November 1990. 68. The Court notes that in its judgment of 7 July 1995 the Federal Court referred to various provisions in criminal law obliging a person to act in a particular way so as to enable the authorities to obtain his conviction, for instance the obligation to install a tachograph in lorries, or to submit to a blood or a urine test. In the Court’s opinion, however, the present case does not involve material of this nature which, like that considered in Saunders, has an existence independent of the person concerned and is not, therefore, obtained by means of coercion and in defiance of the will of that person (see Saunders, cited above, pp. 2064-65, § 69). 69. The Government have further submitted that the applicant had not been obliged to incriminate himself, since the authorities were in fact already aware of the information in question and he had admitted the amounts concerned. The Court remains unconvinced by this argument in view of the persistence with which the domestic tax authorities attempted to achieve their aim. Thus, between 1987 and 1990 the authorities found it necessary to request the applicant on eight separate occasions to submit the information concerned and, when he refused to do so, they successively imposed altogether four disciplinary fines on him. 70. Finally, the Government have submitted that a separation of proceedings – regular tax proceedings, on the one hand, and criminal tax-evasion proceedings, on the other – would be impractical. The Court recalls that its task is to determine whether the Contracting States have achieved the result called for by the Convention, not to indicate which means a State should utilise in order to perform its obligations under the Convention (see De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, p. 20, § 35). 71. As a result, and against the above background, the Court considers that there has been a violation of the right under Article 6 § 1 of the Convention not to incriminate oneself. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 73. The applicant claimed 4,000 Swiss francs (CHF) for the two disciplinary fines incurred of CHF 2,000 each. The Government accepted reimbursement of the first fine but not the second, concerning cantonal and communal taxes, since only the first fine had been contested before the Federal Court. 74. The Court agrees with the Government and awards the applicant CHF 2,000 under this head. B. Costs and expenses 75. Under this head, the applicant claimed a total of CHF 33,909.80, namely, CHF 409.80 for costs in the proceedings before the Tax Appeals Commission; CHF 2,000 for costs in the proceedings before the Federal Court; and CHF 31,500 for the cost of legal representation before the Federal Court and in the Strasbourg proceedings. 76. The Government submitted that the agreement reached by the applicant and the authorities brought to an end all pending tax proceedings, with the exception of the proceedings before the European Court of Human Rights. This agreement covered in particular costs in the proceedings before the Tax Appeals Commission and the Federal Court. For the same reason, and with reference to The Sunday Times v. the United Kingdom (no. 1) (Article 50), the Government considered that the cost of legal representation before the Federal Court could not be taken into account (see the judgment of 6 November 1980, Series A no. 38, pp. 12-13, § 22). The Government moreover recalled that in its admissibility decision of 6 April 2000 the Court declared inadmissible the applicant’s complaint under Article 4 of Protocol No. 7 to the Convention. As a result, the Government considered the sum of CHF 5,000 to be adequate for the expenses incurred by the applicant. 77. In accordance with its case-law, the Court will consider whether the costs and expenses claimed were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, for instance, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII). 78. The Court considers, on the one hand, that the costs of CHF 2,409.80 incurred in the proceedings before the Tax Appeals Commission and the Federal Court were necessary in so far as the applicant had to raise his complaints before these instances in order to comply with the requirements of Article 35 of the Convention. Neither these costs nor the costs of legal representation before the Federal Court were identified as such in the settlement reached on 28 November 1996, which concerned the applicant’s taxes and fines for tax evasion, but excluded the present application directed against the Federal Court proceedings. On the other hand, as regards the costs of legal representation in Strasbourg, the Court agrees with the Government that the award of costs and expenses should take into account the fact that part of the applicant’s complaints was declared inadmissible. Making an assessment on an equitable basis, the Court awards him CHF 8,000 in respect of costs of legal representation. 79. As a result, the Court awards the applicant a total of CHF 10,409.80 under the head of costs and expenses. C. Default interest 80. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum. | The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention. It noted in particular that the right to remain silent and the right not to incriminate oneself were international standards at the heart of the notion of a fair procedure under Article 6 § 1. In the present case, it appeared that the authorities had attempted to compel the applicant to submit documents which would have provided information as to his income in view of the assessment of his taxes. The applicant could not exclude that any additional income which transpired from these documents from untaxed sources could have constituted the offence of tax evasion. |
920 | Absence of outside influence | II. RELEVANT LEGISLATION 20. Under Article 15 of the Federal Constitution, as interpreted by the Constitutional Court, the regulation of real property transactions is a matter coming within the jurisdiction of the Länder. Most of the Länder have enacted legislation whereby all contracts relating to agricultural or forestry land and also, in some cases, real property transactions with foreigners have to be approved by special authorities. 21. In the Tyrol (see paragraph 9 above), section 15(1) of the 1970/1973 Act obliges the purchaser to seek such approval within two months of the conclusion of the contract. No entry can be made in the land register until the transaction has been approved by the competent authority (section 1(4)). If approval is withheld, the acquisition is null and void (section 16(1)). 22. When the contract relates to agricultural or forestry land and irrespective of the purchaser ’ s nationality, the first-instance authority is the Höfekommission ("Farm Commission") (section 13(1)(a)). The Farm Commission is established at the seat of the District Administration and has three members: the head of the District Administration, or a legally qualified (rechtskundig) official of that Administration appointed by him, as chairman; a person designated by the chamber of agriculture of the district; and another person, designated by the municipality in question, who is engaged in agriculture or forestry (section 9 of the Tyrolean Farms Act of 12 June 1900; Gesetz betreffend die besonderen Rechtsverhältnisse geschlossener Höfe). The decisions of the Farm Commission are taken by majority vote (section 13(2) of the 1970/1973 Act); they are subject to appeal to the Regional Authority (see paragraph 24 below) by, amongst others, the parties to the contract or the Transactions Officer (section 13(3)). 23. The Transactions Officer, who is appointed for three years by the Government of the Tyrol, must be a person who is experienced in real property transaction matters (section 14). His secretariat is provided by a division of the Office of the said Government. 24. If the case is referred to it, the Regional Real Property Transactions Authority established at the Office of the Land Government takes a decision as the second and final instance (section 13(4)). Its membership varies according to the subject-matter of the contract to be examined. In the case of agricultural or forestry land - whether the buyer be Austrian or foreign - its voting members are (section 13(4), no. 1): "(a) a person experienced in real property transaction matters, who shall act as chairman; (b) a member of the judiciary (Richterstand); (c) a legally qualified civil servant from the Office of the Regional Government, with training in real property transaction matters, who shall act as rapporteur; (d) a senior civil servant from the Agricultural Services Department (technischer Agrardienst) of the Office of the Regional Government; (e) a senior civil servant from the Forestry Services Department (forsttechnischer Dienst); (f) an agricultural expert; (g) a lawyer (Rechtsanwalt or Notar)." 25. The above-cited provision, which was introduced by the Act of 28 November 1973 (see paragraph 9 above), replaced a text which the Constitutional Court had held to be incompatible with Article 6 (art. 6) of the Convention, as interpreted by the European Court in its Ringeisen judgment of 16 July 1971 (Series A no. 13). The Constitutional Court had ruled that the Regional Authority, as it was constituted under the original Act of 1970, could not be considered an "independent and impartial" tribunal because its members included, as chairman, one of the members of the Government of the Tyrol (section 13(1), no. 1(a), former version). Furthermore, so the Constitutional Court held, the Act did not fix the duration of the members ’ term of office, conferred on the said Government the power of appointing the members (save for a judge, who was appointed by the Federal Minister of Justice) and did not lay down the circumstances in which members might be removed from office (judgment of 29 June 1973, Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1973, vol. 38, no. 7099). 26. Following this judgment, the Tyrolean legislature amended, by the same Act of 28 November 1973, the provisions in section 13 concerning, inter alia, exercise of the office of member of the Regional Authority. Sub-sections 5 to 13 of that section read as follows: "(5) The member of the Regional Real Property Transactions Authority appointed from the judiciary (sub-section 4, no. 1 (b)), shall be appointed by the Federal Minister of Justice and the remaining members, by the Regional Government. For each member a substitute member shall be similarly appointed. (6) Only Austrian citizens who have reached the age of 25 years and are in full possession of their legal rights shall be eligible for appointment as members or substitute members. Persons who by reason of a criminal conviction are disqualified from jury service or from acting as lay assessors shall be ineligible. (7) Members and substitute members shall hold office for three years. Members or substitute members who are appointed within the general three-year term of office shall cease to hold office at the end of that term. Re-appointment is possible. Members and substitute members shall continue to perform their duties after expiry of their term of office until they have been replaced. (8) The quorum of the Regional Real Property Transactions Authority shall be constituted if the chairman, the member appointed from the judiciary, the rapporteur and at least two other members are present. Decisions shall be taken by majority vote. If the votes are equally divided, the chairman shall have a casting vote. Abstention shall count as a negative vote. (9) In the performance of their duties the members of the Regional Real Property Transactions Authority shall not be subject to any instructions; the executive may neither annul nor vary their decisions. (10) The details of the Real Property Transactions Authorities ’ procedure (such as the convening of sittings, summoning of substitute members, conduct of voting, keeping of minutes and signing of decisions) shall be laid down by the Regional Government in rules of procedure (Geschäftsordnung) for the said Authorities. (11) Unless they are civil servants, members of the Real Property Transactions Authorities shall receive for their work remuneration and a travel allowance, the amount of which shall be laid down in regulations made by the Regional Government. (12) A member or substitute member shall be removed from office, before the end of his term of office, if: (a) circumstances intervene which would have made him ineligible for appointment; (b) the regular performance of his duties becomes per 80 manently impossible. (13) If an official of a "territorial" authority (Gebietskörperschaft) is suspended from duty under the regulations governing his employment, he shall cease to exercise his functions as a member or substitute member of a Real Property Transactions Authority for the duration of the suspension." Sub-section (9), cited above, corresponds to Article 20 para. 2 of the Constitution, which reads: "If a Federal or a Land Act makes provision for the last-instance decision to be given by a collegiate body at least one of whose members is a judge and whose decisions cannot be annulled or varied by the executive, the other members of that body shall also not be subject to any instructions." Article 20 para. 3 of the Federal Constitution obliges the members of the Regional Authority not to disclose facts which have come to their knowledge in the exercise of their functions, if the interests of a "territorial" authority or of the parties so require (Amtsverschwiegenheit). 27. Procedure before the Real Property Transactions Authorities is governed by the General Administrative Procedure Act 1950 (Allgemeines Verwaltungsverfahrensgesetz). The parties are entitled to consult the case-file (section 17) and must be given an opportunity of presenting their arguments (section 37). The competent authority may decide to hold a hearing (section 39(2)), which will not take place in public; the parties have the right to be heard (rechtliches Gehör) and, inter alia, to adduce their arguments and evidence and comment on facts presented and submissions made by other persons appearing, witnesses or experts (section 43(3)). In certain circumstances which may give reason to doubt his impartiality, the civil servant concerned must arrange to be replaced (section 7). 28. By an order (Verordnung) of 13 September 1966, the Government of the Tyrol issued rules of procedure for the Real Property Transactions Authorities. Under Article 3 para. 1, the Authorities shall deliberate and vote in the absence of the parties, if appropriate after oral hearings. The deliberations shall be recorded in minutes to which the right to consult the case-file (Akteneinsicht), guaranteed by Article 17 of the General Administrative Procedure Act, does not extend (Article 3 para. 3). The Authorities ’ resolutions (Beschlüsse) must be recorded, but may be altered as long as they remain unpublished (nicht nach aussen in Erscheinung getreten) (Article 3 para. 4). Their decisions (Bescheide), which are to be reached on the basis of those resolutions (Article 4 para. 1), shall be given in writing but may in case of urgency be given orally by the chairman (Article 4 para. 2). Before the Regional Real Property Transactions Authority, the rapporteur shall, after setting out and commenting on the results of the investigation (Ermittlungsverfahren), present conclusions (Antrag); those who wish to propose alternative conclusions (Gegen- oder Abänderungsanträge) shall give reasons for them (Article 9 para. 2). The chairman shall decide the order in which voting on the conclusions is to take place (Article 9 para. 3). 29. Decisions of a Regional Authority may be challenged before the Constitutional Court but not before the Administrative Court (Verwaltungsgerichtshof; Articles 133 para. 4 and 144 of the Federal Constitution). PROCEEDINGS BEFORE THE COMMISSION 30. In her application of 19 September 1979 to the Commission (no. 8790/79), Mrs. Sramek alleged that she had not received a fair and public hearing by an independent and impartial tribunal established by law; she relied on Article 6 para. 1 (art. 6-1) of the Convention. 31. On 4 March 1982, the Commission declared the application admissible. In its report of 8 December 1982 (Article 31) (art. 31), the Commission expressed the opinion, by eleven votes to one, that there had been a violation of Article 6 para. 1 (art. 6-1). The full text of the Commission ’ s opinion and of the separate opinion contained in the report is reproduced as an annex to the present judgment . FINAL SUBMISSIONS PRESENTED BY THE GOVERNMENT 32. At the close of the hearings on 24 January 1984, the Government requested the Court "to hold that in the present case the provisions of paragraph 1 of Article 6 (art. 6-1) of the Convention ... were not violated and that, as a consequence, the facts underlying the dispute do not indicate any breach by the Republic of Austria of its obligations under the Convention". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 33. Article 6 para. 1 (art. 6-1) of the Convention reads as follows: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." In the submission of the applicant, the Regional Real Property Transactions Authority was not an "independent and impartial tribunal"; in addition, it had not afforded her a "fair" and "public" hearing. The Government disputed all these contentions; the Commission, for its part, upheld them in so far as they related to an absence of independence and impartiality. A. Applicability of Article 6 para. 1 ( art. 6-1) 34. Having purchased a plot of land, Mrs. Sramek was entitled to have the sale contract approved if, as she maintained, it satisfied the statutory conditions. An unfavourable decision in the matter would - and did - mean that the transaction was null and void. Accordingly, the outcome of the proceedings at issue was "decisive for private rights and obligations" (see the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 94), with the result that Article 6 para. 1 (art. 6-1) was applicable in the present case; this was, in fact, accepted by the Government. 35. Mrs. Sramek ’ s case came before three bodies, namely the District Real Property Transactions Authority for Hopfgarten, then the Regional Real Property Transactions Authority and finally the Constitutional Court. The Hopfgarten District Authority is not relevant for the present purposes: it had approved the contract and was not the subject of any complaint on the part of the applicant. The Constitutional Court was not called upon to determine the actual merits of the dispute ("contestation"), but solely to review the Regional Authority ’ s decision for conformity with constitutional law (see, mutatis mutandis, the Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para. 48). The question which has to be decided, therefore, is whether the requirements of Article 6 para. 1 (art. 6-1) of the Convention were met by the Regional Authority. B. Compliance with Article 6 para. 1 (art. 6-1) 1. "Tribunal established by law" 36. Under Austrian law, the Regional Authority is not classified as one of the courts of the respondent State. For the purposes of Article 6 (art. 6), however, it comes within the concept of a "tribunal" in the substantive sense of this expression: its function is to determine matters within its competence on the basis of rules of law, following proceedings conducted in a prescribed manner (see paragraph 71 of the Commission ’ s report and, mutatis mutandis, the Campbell and Fell judgment of 28 June 1984, Series A no. 80, p. 39, para. 76). The Regional Authority is also a tribunal "established by law", that is to say, by the 1970/1973 Act. 2. "Independent and impartial tribunal" 37. In addition to the foregoing, it has to be shown that the Regional Authority exhibits the independence and impartiality which are required by Article 6 para. 1 (art. 6-1). In the submission of Mrs. Sramek, this condition was not satisfied on account, inter alia, of the composition of the Authority and the manner of appointment of its members; of the position of the Transactions Officer - representing the Land Government, in their capacity as a party to the case - vis-à-vis the civil-servant members; of the brevity of the members ’ term of office (three years); and of the three-fold fact that the Authority has its headquarters in the Office of the Land Government, that the Land Government lays down the Authority ’ s rules of procedure and that the Land Government remunerates the Authority ’ s members. The Government compared the Tyrolean Regional Authority with the Upper Austrian Regional Real Property Transactions Commission. They contended that the independence of the former was even more extensive than that of the latter, a body which had been recognised by the Court to be independent in its above-mentioned Ringeisen judgment (Series A no. 13, p. 39, para. 95). According to the Government, this was shown by the composition of the Authority; by the length of its members ’ term of office; by the fact that they cannot be removed, save for reasons laid down by statute; by the rules expressly forbidding the giving of instructions to the members; and by the absence of any "functional and organisational link" between the Transactions Officer and the civil-servant members. In the Commission ’ s view, the present case gave rise to more issues of principle than did the Ringeisen case. The Commission considered that certain of the factors relied on by the Government were not without relevance, but nevertheless did not ensure full independence and impartiality of the members of the Regional Authority. In particular, the composition of the Regional Authority and the position of the Transactions Officer vis-à-vis the rapporteur prevented the Regional Authority from being regarded as sufficiently independent of the executive and of the appellant. 38. In the opinion of the Court, the Tyrolean Act, as modified following a judgment by the Constitutional Court (see paragraphs 25-26 above), satisfies the requirements of Article 6 (art. 6) as regards the length of the term of office of the members of the Regional Authority and the - limited - possibility of removing them. Again, the procedure applicable under the General Administrative Procedure Act 1950 involves the participation of both parties (revêt un caractère contradictoire) (see paragraph 27 above). Although the power of appointing the members - other than the judge - is conferred on the Land Government, this does not suffice, of itself, to give cause to doubt the members ’ independence and impartiality: they are appointed to sit in an individual capacity and the law prohibits their being given instructions by the executive (see paragraph 26 above). 39. As far as the membership of the "tribunal" was concerned, the Regional Authority was composed of a farmer, who was the mayor - elected by universal suffrage - of a municipality in the Tyrol, as chairman; a judge of the Innsbruck Court of Appeal; another farmer, sitting as an agricultural expert; a lawyer; and three civil servants from the Office of the Land Government, one of whom acted as rapporteur (see paragraphs 13 and 24 above). 40. No question arises as to the independence and impartiality of the judge. The same applies to the agricultural expert. As for the lawyer, the applicant argued that he might on occasion have received instructions from the Land Government if he had been engaged to represent them in legal proceedings. However, even if he had - an eventuality that can in fact be discounted since it does not appear to have materialised in the present case -, his impartiality could not be called in question on that score alone. Neither is there any problem as regards the fact that the person who, by reason of his experience in real estate matters, acted as chairman of the Regional Authority happened to be a mayor. It is true that the municipalities in Austria exercise their powers - whether in their own right or under delegation - subject to the supervision of the Land or the Federation (see Articles 119 and 119 (a) of the Constitution and paragraph 77 in fine of the Commission ’ s report); however, it cannot be concluded from this that their mayors do not act independently in matters which - like those involved here - fall outside the ambit of those powers. 41. There remain the three civil servants from the Office of the Land Government who, in accordance with the 1970/1973 Act (see paragraph 24 above), were, and had to be, included amongst the members of the Regional Authority. In considering their position, it has to be recalled that it was held in the above-mentioned Ringeisen judgment that the presence of civil servants on the Upper Austrian Regional Commission was compatible with the Convention (Series A no. 13, pp. 39-40, paras. 95-97). Furthermore, in proceedings of the kind at issue the Government of the Tyrol are prevented by law from giving their civil servants instructions on carrying out their judicial functions. However, the present case is distinguishable from the Ringeisen case in that the Land Government, represented by the Transactions Officer, acquired the status of a party when they appealed to the Regional Authority against the first-instance decision in Mrs. Sramek ’ s favour, and in that one of the three civil servants in question had the Transactions Officer as his hierarchical superior (see paragraph 12 above). That civil servant occupied a key position within the Authority: as rapporteur, he had to set out and comment on the results of the investigation and then to present conclusions; the secretariat was provided by his department, namely division III b. 3 (see paragraphs 13 in fine, 14 and 28 in fine above). As was pointed out by the Government, the Transactions Officer could not take advantage of his hierarchical position to give to the rapporteur instructions to be followed in the handling of cases (see paragraph 26 above), and there is nothing to indicate that he did so on the present occasion. 42. Nonetheless, the Court cannot confine itself to looking at the consequences which the subordinate status of the rapporteur vis-à-vis the Transactions Officer might have had as a matter of fact. In order to determine whether a tribunal can be considered to be independent as required by Article 6 (art. 6), appearances may also be of importance (see, mutatis mutandis, the above-mentioned Campbell and Fell judgment, Series A no. 80, pp. 39-40, para. 78, and the Piersack judgment of 1 October 1982, Series A no. 53, pp. 14-15, para. 30). Where, as in the present case, a tribunal ’ s members include a person who is in a subordinate position, in terms of his duties and the organisation of his service, vis-à-vis one of the parties, litigants may entertain a legitimate doubt about that person ’ s independence. Such a situation seriously affects the confidence which the courts must inspire in a democratic society (see, mutatis mutandis, the above-mentioned Piersack judgment, Series A no. 53, pp. 14-15, para. 30). There was accordingly a violation of Article 6 para. 1 (art. 6-1). 3. Fair and public trial 43. The applicant further contended that she did not receive a fair hearing and objected to the fact that the proceedings were not conducted in public. The conclusion in the preceding paragraph renders it unnecessary for the Court to rule on these complaints (see paragraph 83 of the Commission ’ s report and, mutatis mutandis, the above-mentioned Piersack judgment, p. 16, para. 33). II. APPLICATION OF ARTICLE 50 (art. 51) 44. Under Article 50 (art. 50) of the Convention, "if the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party". 45. The applicant claimed, for pecuniary loss, compensation which she quantified provisionally at 1,000,000 schillings. She alleged that she would have to pay 1,200,000 schillings to buy a similar plot of land today, as compared with 120,000 schillings at the time in question, and that, taking into account the interest which she could have earned on the latter sum in the meantime, she had suffered a loss of one million schillings. Moreover, she added, the construction of the residence which she had had in mind would now cost her 490,000 schillings more than formerly and her inability to implement this project had caused her a loss of income of at least 500,000 schillings. However, she made no immediate claim for the last two amounts. Mrs. Sramek also sought reimbursement of 100,000 schillings for legal costs before the Austrian authorities - notably the Real Property Transactions Authorities of the Tyrol, the Ministry of Foreign Affairs and the Constitutional Court - and the Strasbourg institutions; according to her, she had actually spent more than this. The Government submitted, in essence, that the applicant had not suffered any pecuniary loss; they did not comment on the claim for legal costs. The Commission, for its part, expressed no opinion on any of the claims. 46. The Court considers that the question is ready for decision (Rule 53 para. 1, first sentence, of the Rules of Court). As far as material damage is concerned, Mrs. Sramek ’ s claims proceed solely from the assumption that if the Regional Authority had constituted an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (art. 6-1), it would have approved the contract of sale. However, the evidence in the file does not warrant the conclusion that had it been differently composed the Regional Authority would have arrived at a decision in Mrs. Sramek ’ s favour and it is not for the Court to inquire whether, under Austrian law, the Regional Authority ought to have given such a decision. The applicant ’ s allegations as to pecuniary loss cannot therefore be upheld. On the other hand, the Court allows the claims for legal costs, which were not contested by the Government: it sees no reason to doubt that they satisfy the criteria which emerge from its case-law on the subject (see, amongst other authorities, mutatis mutandis, the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, pp. 14-15, paras. 36 and 38). | The Court noted in particular that, in order to determine whether a tribunal could be considered to be independent as required by Article 6 of the Convention, appearances may also be of importance. It held that there had been a violation of Article 6 § 1 of the Convention in respect of the applicant, finding in particular that, where, as in the present case, a tribunal’s members included a person who was in a subordinate position, in terms of his duties and the organisation of his service, vis-à-vis one of the parties, litigants may entertain a legitimate doubt about that person’s independence. Such a situation, the Court stressed, seriously affected the confidence which the courts must inspire in a democratic society. |
688 | Negationism and revisionism | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant criminal offences 28. The relevant provisions of the Criminal Code read as follows: Article 187 [Intentional defamation] “Whosoever intentionally and knowingly asserts or disseminates an untruth related to another person that may defame him or negatively affect public opinion about him or endanger his creditworthiness shall be liable to [a term of] imprisonment not exceeding two years or a fine and, if the offence was committed publicly, in a meeting or through the dissemination of written materials ..., to [a term of] imprisonment not exceeding five years or a fine.” Article 189 [Violating the memory of the dead] “Whosoever defames the memory of a deceased person shall be liable to [a term of] imprisonment not exceeding two years or a fine.” B. Immunity (non-liability and inviolability) for statements made in Parliament 29. Non-liability ( Indemnität ) excludes criminal liability for a vote cast or a statement made in Parliament, including after the end of the term of office, and cannot be revoked ( Strafausschließungsgrund ). It does not apply to cases of intentional defamation (Article 36 of the Criminal Code), which can thus be subject to criminal prosecution, if Parliament gives its permission – revoking the inviolability ( Immunität ) enjoyed by the MP concerned – or if the MP is apprehended while committing the offence or in course of the following day. Article 24 §§ 1 and 2 of the Constitution of the Land of Mecklenburg-Western Pomerania are applicable to Members of the Parliament of the Land and read as follows: Article 24 of the Constitution of the Land of Mecklenburg-Western Pomerania [Non-liability, Inviolability, Right to Refuse Testimony] “(1) At no time may a Member of the Land Parliament be subjected to court proceedings or disciplinary action or be otherwise called to account outside the Land Parliament for a vote cast or for any utterance made in the Land Parliament or in any of its committees. This provision shall not apply to defamatory insults. (2) A Member of the Land Parliament may not be called to account or arrested for a punishable offence without the permission of the Land Parliament, unless he is apprehended while committing the offence or in the course of the following day. The permission of the Land Parliament shall also be required for [the imposition of] any deprivation or other restriction on the liberty of a Member of the Land Parliament or for the initiation of proceedings against that Member. ...” C. Disqualification of judges and proceedings in respect of complaints of bias 30. Article 22 of the Code of Criminal Procedure lists a number of scenarios in which personal relationships disqualify, by law, a judge from sitting on a case. Marriage to another judge involved at a different level of jurisdiction in the same proceedings is not listed. However, a judge may still be disqualified under Article 24 of the Code if there are grounds justifying doubts as to the judge’s impartiality. The case-law of the domestic courts diverges as to whether a justifiable fear of bias follows from the fact of marriage alone in a scenario in which the challenged judge is married to the judge who rendered judgment at the level of jurisdiction immediately below and in which that judgment is under scrutiny at the appeal stage (no fear of bias found by the Federal Court of Justice, no. II ZB 31/02, decision of 20 October 2003; fear of bias found by the Federal Social Court, no. B 14 AS 70/AS, decision of 18 March 2013, in view of the complexity of, and close scrutiny of the challenged judgment in, proceedings concerning an appeal on points of law). 31. As a rule, the court must rule on a complaint of bias without the challenged judge being involved in reaching that decision (Article 27 of the Code of Criminal Procedure). Article 26a of the Code provides an exception whereby under certain circumstances the adjudicating court may reach its decision with the participation of the challenged judge. The objective of that exception is to avoid courts having to interrupt or even stay proceedings in order for certain challenges to be examined. The provision permits the participation of the challenged judge in the decision if, inter alia, the challenge does not disclose the grounds for the alleged bias (Article 26a § 1 number 2). According to the case-law of the domestic courts, this latter provision also covers cases where the grounds for the challenge is disclosed but is completely ill-suited (see Federal Constitutional Court, no. 2 BvR 1674/06, decision of 27 April 2007; Federal Court of Justice, no. 3 StR 239/12, decision of 15 November 2012). The provision is to be interpreted narrowly, and a challenge may only be considered “completely ill-suited” when it can be rejected without any examination of the subject matter of the proceedings; it does not suffice that the challenge is manifestly ill-founded (Federal Constitutional Court, no. 2 BvR 1674/06, cited above). 32. Where a complaint of bias is deemed to be well-founded, the respective judge is disqualified from sitting in further decisions on that case. Where a bias complaint, which has been lodged after a decision to dismiss an appeal on points of law, is lodged against the judges who took that decision, these judges are, if the complaint of bias is deemed to be well ‑ founded, excluded from sitting in further decisions of that case which, in practice, notably concerns a motion to be heard ( Anhörungsrüge ) that has not yet been adjudicated. In respect of a motion to be heard, the scope of assessment is limited to the question of whether the applicant’s right to be heard had been breached by the impugned decision; it does not entail a full assessment in fact and in law of the impugned decision itself. A fear of bias against one of the judges sitting on the impugned decision does not in itself render the motion to be heard well-founded. If a motion to be heard is deemed to be well-founded, the proceedings have to be reinstated to the situation as it was prior to the breach of the right to be heard, that is, prior to the impugned decision (Article 356a of the Code of Criminal Procedure). If the judges who took that decision are deemed to have been biased, they are disqualified from sitting in the new substantive decision. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33. The applicant complained that his criminal conviction for violating the memory of the dead and for defamation had breached his right to freedom of expression, as guaranteed by Article 10 of the Convention, which, insofar as relevant, reads as follows: “1. Everyone has the right to freedom of expression. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...” A. The parties’ submissions 34. The Government submitted that the views expressed by the applicant – that is to say denial of the Holocaust – ran counter to the text and spirit of the Convention and that he therefore could not, under Article 17 of the Convention, rely on Article 10 as regards his impugned statements. This part of the application was thus incompatible ratione materiae with the provisions of the Convention. In the alternative, they maintained that the complaint was ill-founded. The applicant’s criminal conviction for the impugned statements constituted a justified interference under Article 10 § 2 of the Convention. The domestic courts had comprehensively assessed the case in fact and in law and had thoroughly reasoned their decisions, notably as to why the statements had amounted to Holocaust denial. The fact that the applicant had been a Member of Parliament at the material time and that the statement had been made in Parliament did not lead to a different result. 35. The applicant submitted that the domestic courts had wrongfully interpreted his statements as Holocaust denial. They had wrongfully selected a small part of his speech and had based the applicant’s conviction on these aspects viewed in isolation, rather than assessing the speech as a whole. His speech was not to be understood as such a denial, but as a criticism of the culture of remembrance, as upheld by the German establishment. Its purpose had not been to deny the suffering of Jewish victims but to call for an honouring of the suffering of “German” victims as well. His statements did not fall within the ambit of Article 17 of the Convention. As a Member of the Parliament of the Land of Mecklenburg-Western Pomerania, he benefitted from non-liability for statements made in Parliament, and interferences with his right to freedom of expression called for the closest scrutiny. B. The Court’s assessment 36. The former Commission and the Court have dealt with a number of cases under Articles 10 and/or 17 of the Convention concerning denial of the Holocaust and other statements relating to Nazi crimes and declared them inadmissible, either as being manifestly ill-founded (see recently Williamson v. Germany (dec.), no. 64496/17, 8 January 2019) – relying on Article 17 as an aid in the interpretation of Article 10 § 2 of the Convention and using it to reinforce its conclusion on the necessity of the interference – or as being incompatible ratione materiae with the provisions of the Convention in view of Article 17 of the Convention (see Perinçek v. Switzerland [GC], no. 27510/08, §§ 209-212, ECHR 2015 (extracts), with further references; see also Roj TV A/S v. Denmark (dec.), no. 24683/14, §§ 26-38, 17 April 2018, for an analysis of the case-law concerning Article 17 of the Convention). 37. The Court reiterates that Article 17 is only applicable on an exceptional basis and in extreme cases and should, in cases concerning Article 10 of the Convention, only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention (see Perinçek, cited above, § 114). The decisive point when assessing whether statements, verbal or non-verbal, are removed from the protection of Article 10 by Article 17, is whether those statements are directed against the Convention’s underlying values, for example by stirring up hatred or violence, or whether by making the statement, the author attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it (see ibid., § 115; and Roj TV A/S, cited above, § 31). In a case concerning Holocaust denial, whether the Court applies Article 17 directly, declaring a complaint incompatible ratione materiae, or instead finds Article 10 applicable, invoking Article 17 at a later stage when it examines the necessity of the alleged interference, is a decision taken on a case-by-case basis and will depend on all the circumstances of each individual case. 38. In its case-law, the Court has consistently underlined the particular importance of freedom of expression for Members of Parliament, this being political speech par excellence. States have very limited latitude in regulating the content of Parliamentary speech. However, some regulation may be considered necessary in order to prevent forms of expression such as direct or indirect calls for violence. Through the generally recognised rule of Parliamentary immunity (as a generic concept covering both aspects non-liability and inviolability) the States provide an increased level of protection to speech in Parliament, with the consequence that the need for the Court’s intervention could nonetheless be expected to be rare. Interferences with the freedom of expression of an opposition Member of Parliament call for the closest scrutiny on the part of the Court (see the summary of relevant principles in Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, §§ 137-141, 17 May 2016, with further references). 39. In the present case the Court considers, on the one hand, that the applicant’s statements showed his disdain towards the victims of the Holocaust, which speaks in favour of the incompatibility ratione materiae of the complaint with the provisions of the Convention (compare Witzsch v. Germany (no. 2) (dec.), no. 7485/03, 13 December 2005). On the other hand, it has regard to the fact that the statement was made by a Member of Parliament during a Parliamentary session, such that it could warrant an elevated level of protection and any interference with it would warrant the closest scrutiny on the part of the Court. Having regard to the role of Parliamentary immunity in providing increased protection to speech in Parliament, the Court considers it to be of particular relevance that the Parliament of the Land of Mecklenburg-Western Pomerania revoked the applicant’s inviolability from prosecution (see paragraphs 6, 15 and 29 above). 40. To the extent that the applicant can rely on Article 10 of the Convention, the Court finds that his criminal conviction for the statement at issue amounted to an interference with his right to freedom of expression. Such interference will infringe the Convention if it does not meet the requirements of Article 10 § 2 of the Convention. 41. The Court reiterates that it is not called upon to examine the constituent elements of the offences of intentional defamation and of violating the memory of the dead; nor is it called upon to examine the extent of the indemnity enjoyed by a Member of Parliament. Rather, it is in the first place for the national authorities, especially the courts, to interpret and apply domestic law (see M’Bala M’Bala v. France (dec.), no. 25239/13, § 30, ECHR 2015 (extracts), with further references). Accordingly, the Court is satisfied that the interference was prescribed by law (namely Articles 187 and 189 of the Criminal Code) and that it pursued the legitimate aim of protecting the reputation and rights of others. 42. The Court thus has to determine whether the interference with the applicant’s right to freedom of expression was “necessary in a democratic society”. The relevant principles are well established in the Court’s case-law and have recently been summarised in Karácsony and Others (cited above, §§ 132, 137-141). 43. Reiterating that the Court must satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see M’Bala M’Bala, cited above, § 30), it observes that the Regional Court cited the applicant’s speech in its entirety and considered that large parts of it did not raise an issue under criminal law. That court found, however, that these parts of the applicant’s speech could not mitigate, conceal or whitewash the qualified Holocaust denial that the applicant had uttered in a small part of the speech. It considered that the applicant had inserted that denial into the speech like “poison into a glass of water, hoping that it would not be detected immediately”. He had questioned the true nature of Auschwitz and had “sneaked” this into Parliament in such a way that no parliamentary measures would be taken. The Regional Court was convinced that he had intended to convey his message exactly in the way it was perceived. It assessed the applicant’s utterance linguistically and put it into context. It concluded that it could, objectively, only be understood as a denial of the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich (or at least the extent thereof), as reported by historians, and that the applicant’s motive was to allege the suppression and exploitation of Germany for the benefit of the Jews. 44. That finding by the domestic courts was based on an assessment of the facts with which the Court can agree. It cannot accept, in particular, the applicant’s argument that the domestic courts wrongfully selected a small part of his speech, viewed it in isolation and based his conviction on that small part. The contrary is true. The Regional Court cited and assessed the applicant’s speech in full. It clarified that large parts of his speech, in which he had referred to “German” victims in the Second World War, did not raise an issue under criminal law, and that he could rely on his right to freedom of expression in so far as he had criticised the remembrance of the victims of National Socialism and used very strong language to that end (see paragraph 12 above). The Court notes that the applicant’s statements concerning the remembrance of the victims of National Socialism were linked to an ongoing debate within Parliament, whereas the statements containing a qualified Holocaust denial, which led to the applicant’s criminal conviction, were not. The latter aspect constitutes an important difference to the case of Kurłowicz v. Poland (no. 41029/06, 22 June 2010), where the impugned offensive statements had been an integral part of a political debate. 45. The Regional Court found that the applicant had chosen the subject of Wilhelm Gustloff by way of a contrast to the previous day’s memorial event for victims of the Holocaust (which the applicant and members of his Parliamentary group did not attend). The Court considers that the gist of the Regional Court’s reasoning (see paragraph 43 above) was threefold: the applicant inserted the qualified Holocaust denial into his speech, large parts of which did not raise an issue under criminal law, as if inserting “poison into a glass of water, hoping that it would not be detected immediately”; the parts of his speech that did not raise an issue under criminal law could not mitigate, conceal or whitewash the qualified Holocaust denial; and he wanted to convey his message exactly in the way that it was understood by the Regional Court, in the view of an objective observer. 46. The Court attaches fundamental importance to the fact that the applicant planned his speech in advance, deliberately choosing his words (compare and contrast Otegi Mondragon v. Spain (no. 2034/07, § 54, ECHR 2011) and resorting to obfuscation to get his message across: a qualified Holocaust denial showing disdain towards the victims of the Holocaust and running counter to established historical facts, alleging that the representatives of the “so-called” democratic parties were using the Holocaust to suppress and exploit Germany. It is with reference to this aspect of the applicant’s case that Article 17 of the Convention has an important role to play, regardless of Article 10 being deemed applicable (see paragraphs 36-37 above). The Court considers that the applicant sought to use his right to freedom of expression with the aim of promoting ideas contrary to the text and spirit of the Convention. This weighs heavily in the assessment of the necessity of the interference (see Perinçek, cited above, §§ 209-212). 47. While interferences with the right to freedom of expression call for the closest scrutiny when they concern statements made by elected representatives in Parliament, utterances in such scenarios deserve little, if any, protection if their content is at odds with the democratic values of the Convention system. The exercise of freedom of expression, even in Parliament, carries with it “duties and responsibilities” referred to in Article 10 § 2 of the Convention (see Karácsony and Others, cited above, § 139). Parliamentary immunity offers, in this context, enhanced, but not unlimited, protection to speech in Parliament (ibid.). 48. In the present case, the applicant intentionally stated untruths in order to defame the Jews and the persecution that they had suffered during the Second World War. Reiterating that it has always been sensitive to the historical context of the High Contracting Party concerned when reviewing whether there exists a pressing social need for interference with rights under the Convention and that, in the light of their historical role and experience, States that have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis (see Perinçek, cited above, §§ 242-243, with further references; see also Nix v. Germany (dec.), no. 35285/16, 13 March 2018), the Court therefore considers that the applicant’s impugned statements affected the dignity of the Jews to the point that they justified a criminal-law response. Even though the applicant’s sentence of eight months’ imprisonment, suspended on probation, was not insignificant, the Court considers that the domestic authorities adduced relevant and sufficient reasons and did not overstep their margin of appreciation. The interference was therefore proportionate to the legitimate aim pursued and was thus “necessary in a democratic society”. 49. In these circumstances the Court finds that there is no appearance of a violation of Article 10 of the Convention. Accordingly the complaint must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 50. The applicant complained of a violation of his right to an impartial tribunal, as guaranteed by Article 6 § 1 of the Convention, alleging that the Court of Appeal had lacked impartiality in the light of the involvement of judge X. Article 6 § 1 of the Convention, insofar as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” 51. The Government contested that argument. A. Admissibility 52. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 53. The applicant alleged a breach of Article 6 § 1 of the Convention because X had been part of the Court of Appeal formation that had dismissed the applicant’s appeal on points of law, despite the applicant’s challenge against him on the basis of X’s marriage to District Court judge Y. If the Court of Appeal had allowed the applicant’s appeal on points of law, this would have entailed, at least indirectly, criticism of the judgment delivered by the District Court. Given their marriage, X may have been hesitant to so criticise his wife, who had convicted the applicant at first instance. This bias was reinforced by the fact that the married couple had discussed the proceedings against the applicant. Moreover, it had been unlawful for X to participate in the decision on the complaint of bias against him. This defect in the decision of 16 August 2013 was not remedied by the subsequent review decision of 11 November 2013. 54. The Government maintained that there were no indications that Court of Appeal judge X had been biased, nor had there been any appearance to that effect. The judgment of the District Court, rendered by X’s wife and two lay judges, had not been reviewed by the Court of Appeal, which had only examined the Regional Court’s appellate judgment in connection with the applicant’s appeal on points of law. There were no indications that X, when exercising his judicial function, had adopted his wife’s legal views without making an assessment himself. It was in accordance with domestic law that X had participated in reaching a decision on the complaint of bias against him. The Government added that the Court’s recent case-law did not require the impugned judgment to be quashed in order for an impartiality defect to be remedied. 2. The Court’s assessment (a) General principles 55. The Court reiterates at the outset that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused ( Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005 ‑ XIII K). To that end Article 6 requires a tribunal to be impartial (ibid.). Impartiality normally denotes the absence of prejudice or bias, and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test whereby regard must be had to the personal conviction and behaviour of a particular judge, that is whether the judge in question held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. In the vast majority of cases raising impartiality issues the Court has focused on the objective test, which requires a determination of whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings. It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal. In this connection, even appearances may have a certain importance, or, in other words, “justice must not only be done, it must also be seen to be done” (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 145-149, 6 November 2018, with further references). 56. As regards “other links” between a judge and other protagonists in a set of proceedings, the Court has previously found objectively justified doubts as to the impartiality of a trial court’s presiding judge whose husband was the head of the team of investigators dealing with the applicants’ case (see Dorozhko and Pozharskiy v. Estonia, nos. 14659/04 and 16855/04, §§ 56-58, 24 April 2008). 57. The national procedures for ensuring impartiality are a relevant factor which the Court takes into account when making its assessment as to whether a tribunal was impartial and, in particular, whether the applicant’s fears can be held to be objectively justified (see Micallef v. Malta [GC], no. 17056/06, § 99, ECHR 2009). The Court previously found that an applicant’s doubts in respect of the impartiality of judges dealing with his case were objectively justified in view of the procedure they chose to reject his complaint of bias against them, despite considering that the grounds advanced by the applicant for the alleged bias were not sufficient to raise legitimate and objectively justified doubts as to the judges’ impartiality (see A.K. v. Liechtenstein, no. 38191/12, §§ 74 et seq., 9 July 2015). However, in that case, which concerned motions for bias against five constitutional court judges, the constitutional court had decided on each motion in a formation composed of the four remaining judges, each of whom had equally been challenged (ibid., § 77) and in circumstances where, therefore, they all had decided upon motions brought against all of them on identical grounds (ibid., § 79). (b) Application of these principles to the present case 58. The present case differs from Dorozhko and Pozharskiy (cited above) in so far as the marriage in question did not exist between a judge and a (member of a) party to the proceedings, but between two judges dealing with the same case at different levels of jurisdiction. 59. In this respect, the Court notes that the case-law of the domestic courts suggests that a marriage between judges at different levels of jurisdiction that immediately follow one another – that is to say where one spouse, as the judge at a higher level of jurisdiction, is called upon to assess the judgment or decision of the other spouse, who had acted as a judge at a lower level of jurisdiction – may raise objectively justified doubts as to the impartiality of the deciding judge (see paragraph 30 above). 60. In the present case, however, the Court of Appeal acted at third instance in the criminal proceedings against the applicant, whereas the District Court acted at first instance. In accordance with domestic law, the Regional Court, which dealt with the applicant’s appeal on fact and law, conducted a main appellate hearing, during which it took evidence and comprehensively established the facts of the case anew (see paragraphs 8 and 19 above). In respect of the applicant’s appeal on points of law, the Court of Appeal was only called upon to examine the Regional Court’s judgment. 61. Judge X was thus not called to assess the first-instance judgment, in which his wife had been involved. As the Regional Court established the circumstances of the case anew, both in fact and in law, the Court of Appeal’s review was limited to the Regional Court’s judgment, although in substance it took position on the same issues as the District Court. The Court sees no reason to doubt X’s statement that his wife had informed him about the course of the proceedings before the District Court, but that the proceedings had – in line with their general practice – not formed part of their conversations apart from that (see paragraph 18 above). Nonetheless, the fact that X and Y were married and dealt with the applicant’s case at different levels of jurisdiction may give rise to doubts as to X’s impartiality. 62. As regards the procedure for ensuring impartiality, the Court of Appeal decided, by the same order, on the applicant’s complaint of bias and on his appeal on points of law, and X took part in deciding both. Under domestic law, it would not only have been possible (see A.K. v. Liechtenstein, cited above, § 83) to decide on the complaint of bias against X without his participation, but it would even have constituted the default approach stipulated by the legislature (see paragraph 31 above). The objective pursued by the (exceptional) procedure under Article 26a of the Code of Criminal Procedure is to avoid courts having to interrupt or even stay proceedings in order for abusive or irrelevant challenges to be examined (see paragraph 31 above) – which is legitimate in the interest of proper administration of justice (see A.K. v. Liechtenstein, cited above, § 68) and in respect of which parallels can be drawn to the participation of judges in proceedings in respect of contempt of court committed before them, which may be compatible with the Convention in exceptional circumstances (compare Kyprianou, cited above, §§ 124-25; see also Słomka v. Poland, no. 68924/12, 6 December 2018). 63. While it is not for the Court to interpret domestic law, it is difficult to understand how the applicant’s bias complaint against X could be deemed “completely ill-suited”. As indicated above, X’s wife had informed him about the course of the proceedings before the District Court. The Court finds that the applicant’s complaint of bias against X could not be considered as abusive or irrelevant as there might have been an appearance of lack of impartiality (see A.K. v. Liechtenstein, cited above, § 80; contrast Debled v. Belgium, 22 September 1994, § 37, Series A no. 292 ‑ B). X’s participation in the decision of 16 August 2013 on the bias complaint against him did not help dissipate what doubts there may have been. 64. However, the Court of Appeal subsequently sat as a bench of three judges – of whom none had been involved in the decision of 16 August 2013 or any other previous decision in this case – and dismissed a bias complaint against judge X and the other two judges involved. That complaint had again been founded on the same ground, namely the marriage between X and Y, although this time it was not only directed against X, but also against the other two judges because of their involvement in rejecting his first bias complaint. This – second – decision was taken after an examination of the applicant’s complaint on the merits (see paragraphs 23 ‑ 25 above). 65. The Court has previously found that a lack of impartiality in criminal proceedings had not been remedied in cases where a higher court had not quashed the lower court’s judgment adopted by a judge or tribunal lacking impartiality (see Kyprianou, cited above, § 134, with further references). Unlike in the present case, where the objective justification of the applicant’s doubt in respect of the judges dealing with his appeal on points of law primarily results from the procedure they chose to reject the bias complaint against them, the impartiality defects in earlier cases were either more severe (objective and subjective bias found in Kyprianou, cited above, §§ 128 and 133; fundamental flaws in the court-martial system in Findlay v. the United Kingdom, 25 February 1997, §§ 78-79, Reports of Judgments and Decisions 1997 ‑ I; the composition of the first-instance court and matters of internal organisation in De Cubber v. Belgium, 26 October 1984, § 33, Series A no. 86) or the subsequent decisions did not give substantive arguments in response to the applicant’s complaint of bias, thus not remedying the defect ( Boyan Gospodinov v. Bulgaria, no. 28417/07, §§ 58 ‑ 59, 5 April 2018). 66. The Court also has regard to its judgment in Vera Fernández ‑ Huidobro v. Spain (no. 74181/01, §§ 131-136, 6 January 2010), where it found that the defects of the initial investigation against the applicant due to the lack of impartiality of the first investigating judge had been remedied by the fresh investigation conducted by an investigating judge from a higher court (the Supreme Court), despite the applicant’s conviction by the Supreme Court, the single level of jurisdiction at the which the applicant had been tried. In Crompton v. the United Kingdom (no. 42509/05, §§ 76-79, 27 October 2009), which concerned the civil limb of Article 6 of the Convention, the Court found that the higher instance had “sufficiency of review” to ensure that the requirements of Article 6 of the Convention regarding the independence and impartiality of the tribunal were met, and notably to remedy any lack of independence of the lower instance, even though it could not make a substantive ruling as to an appropriate award in the circumstances of the case. The Court deemed it sufficient that the higher instance could and did examine both the method of calculation and the base figures used for the calculation and, in the applicant’s case, had found the base figure to be inaccurate and required the lower instance to review the calculation. 67. In the present case, the subsequent review decision of 11 November 2013 was not rendered by a higher court, but rather by a bench of three judges of the same court who had not been involved in any previous decisions in the applicant’s case. The review decision did not entail a full assessment of either the applicant’s appeal on points of law or the decision of 16 August 2013 dismissing it as ill-founded, but was limited to the question of whether the judges involved in the decision of 16 August 2013 had been biased. However, if the review decision had been rendered in the applicant’s favour, the applicant’s motion to be heard would subsequently have had to be adjudicated by other judges (see paragraph 32 above). It was thus submitted to a subsequent control of a judicial body with sufficient jurisdiction and offering the guarantees of Article 6 of the Convention ( Vera Fernández-Huidobro, cited above, § 131). The present case differs from A.K. v. Liechtenstein (cited above), where the defect at issue similarly related to the choice of procedure for adjudicating the bias complaint, since there had not been any subsequent review of the bias complaint in that case and the judges had been deciding on bias complaints brought against all of them on identical grounds (see paragraph 57 above). 68. Lastly, the applicant had not given any concrete arguments why a professional judge – being married to another professional judge – should be biased when deciding on the same case at a different level of jurisdiction which did not, moreover, entail review of the spouse’s decision, and the Court of Appeal gave sufficient arguments in its decision of 11 November 2013 in response to the applicant’s submissions ( a contrario Boyan Gospodinov, cited above, §§ 58-59). 69. In these circumstances the Court finds that the participation of the judge X in the decision on the bias complaint against him was remedied by the subsequent assessment, on the merits, of the bias complaint, for which the applicant had advanced the same ground, by a separate panel of judges of the same court on 11 November 2013. 70. The Court thus concludes that there have not been objectively justified doubts as to the Court of Appeal’s impartiality. Accordingly, there has been no violation of Article 6 § 1 of the Convention. | The Court declared inadmissible as being manifestly ill-founded the applicant’s complaint under Article 10 (freedom of expression) of the Convention. It noted in particular that the applicant had intentionally stated untruths to defame Jews. Such statements could not attract the protection for freedom of speech offered by the Convention as they ran counter to the values of the Convention itself. In the applicant’s case, the response by the German courts, the conviction, had therefore been proportionate to the aim pursued and had been “necessary in a democratic society”. |
1,066 | Right to a fair trial (Article 6 of the Convention) | II. Relevant domestic law and practice A. The General Act on State Taxes 17. Pursuant to section 20(1) of the General Act on State Taxes ( Algemene wet inzake rijksbelastingen ) a demand for supplementary tax is made if a tax for which the taxpayer is under an obligation to file a declaration ( die op aangifte behoort te worden voldaan of afgedragen ) is not paid in its entirety or not paid at all. In such cases a fiscal penalty is additionally imposed to an amount equal to the amount due in tax (section 21(1)). 18. It is open to a taxpayer to submit an administrative objection ( bezwaarschrift ) to the competent tax inspector (section 23). An appeal against the latter’s decision lies to the Taxation Division of the Court of Appeal (section 26). 19. It is, however, also open to the taxpayer to lodge an appeal directly to the Taxation Division of the Court of Appeal without first submitting an administrative objection to the tax inspector (section 26(2)). This was the course followed by the applicant in the present case. B. The Taxation Disputes (Administrative Jurisdiction) Act 20. A taxpayer who lodges an appeal with the Taxation Division of the Court of Appeal is required to pay a court registration fee, which at the relevant time amounted to NLG 75 (section 5(1) of the Taxation Disputes (Administrative Jurisdiction) Act). This fee is reduced by NLG 35 if the financial interest is very small (section 5(3)), or if the taxpayer is indigent (section 5(4)). The entire fee is paid back to the taxpayer if his appeal is upheld in whole or in part (section 5(7)). 21. An appeal on points of law against the decision of the Taxation Division of the Court of Appeal lies to the Supreme Court (section 19). Such an appeal may be lodged by the competent tax inspector or other tax authority as well as by the taxpayer. 22. The defendant party – tax authority or taxpayer, as the case may be – may submit a written statement of defence (section 22(2)). 23. The Supreme Court does not hold an oral hearing unless it is asked to do so by one of the parties. Such a request may be made in either the statement of points of appeal or the statement of defence, or after the filing of those statements, by the party which has lodged the appeal on points of law; in the latter case the time-limit for so doing is fourteen days after the statement of defence was sent to the party concerned (section 23(1)). 24. If the Procurator-General expresses the wish to be heard, the case file is sent to him after the hearing, or after the filing of the written statements if no hearing is held (section 24(1)). He must submit his advisory opinion in writing (section 24(2)). It is not provided that the taxpayer must be supplied with a copy of the advisory opinion before the delivery of the judgment of the Supreme Court. 25. The Supreme Court deliberates in camera. Although there is no legal provision prohibiting the Procurator-General from attending the Supreme Court’s deliberations, in practice he never attends. 26. The Supreme Court may quash the decision appealed against on the grounds adduced or on other grounds (section 25). In that event it decides on the merits of the case, substituting for the decision of the Taxation Division of the Court of Appeal the decision on the merits which the latter ought to have given. Only if the decision on the merits depends on important facts which have not been established at an earlier stage of the proceedings does the Supreme Court refer the case back to the Court of Appeal which gave the decision appealed against or one of the other courts of appeal (ibid.). C. The Judiciary (Organisation) Act 27. The duties and position of the Procurator-General’s department ( openbaar ministerie ) are defined in the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie ). 28. The Procurator-General’s department consists of the Procurator-General and advocates-general of the Supreme Court, the procurators-general and advocates-general of the courts of appeal and the public prosecutors of the regional and district courts (section 3(1) of the Judiciary (Organisation) Act). The advocates-general of the Supreme Court act as deputies of the Procurator-General of that court and are subordinate to him (sections 3(2), 5a and 6(1)). 29. The Procurator-General’s department must be heard by the courts in so far as the law so prescribes (section 4). The advisory opinion of the Procurator-General or an advocate-general to the Supreme Court takes the form of a learned treatise containing references to relevant case-law and legal literature and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal. PROCEEDINGS BEFORE THE COMMISSION 30. In his application to the Commission of 12 November 1992, the applicant alleged violations of Article 6 § 1 of the Convention in that the levying of a court registration fee had infringed his right of access to a court and in that he had not been able to reply to the advisory opinion submitted to the Supreme Court by the advocate-general. 31. On 16 October 1995 the Commission declared the application (no. 21351/93) admissible in so far as it concerned the failure to allow the applicant an opportunity to reply to the advocate-general’s advisory opinion and inadmissible for the remainder. In its report of 15 October 1996 (Article 31), it expressed the opinion that there had been a violation of Article 6 § 1 of the Convention (by twenty-six votes to four). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE COURT 32. The Government concluded their memorial by expressing the view that Article 6 was not applicable to the present case. The applicant claimed that Article 6 § 1 was applicable and had been violated. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 33. The applicant claimed that he had been a victim of a violation of Article 6 § 1 of the Convention in that he had not been able to reply to the advisory opinion submitted to the Supreme Court by the advocate-general. Article 6 § 1, in so far as relevant, provides as follows: “In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal…” The Commission agreed with the applicant that that provision had been violated. The Government disputed its applicability. A. Applicability of Article 6 § 1 34. In the Government’s view, the Supreme Court had not determined a “criminal charge” against the applicant. Article 6 § 1 was therefore not applicable. They based their argument on the premise that the proceedings in issue related to nothing more than the requirement to pay a court registration fee. They referred to the criteria developed by the Court in its case-law, starting with the Court’s judgments in the cases of Engel and Others v. the Netherlands (judgment of 8 June 1976, Series A no. 22, p. 35, § 82) and Öztürk v. Germany (judgment of 21 February 1984, Series A no. 73, p. 18, § 50), namely whether or not the text defining the offence in issue belonged, according to the legal system of the respondent State, to criminal law, the nature of the offence charged and the nature and degree of severity of the penalty which the person concerned risked incurring. As to the first criterion, they noted that as a matter of Netherlands law the levying of court registration fees fell outside the realm of criminal law. As to the second, they stated that court registration fees were not punitive in nature but served the purpose of ensuring the proper administration of justice. This they did by covering part of the expenses of the administration of justice and discouraging appeals which had no prospect of success. Since they were procedural rules and not criminal sanctions, the present case was more akin to that of Ravnsborg v. Sweden (judgment of 23 March 1994, Series A no. 283-B), where the Court had held a fine for disorderly conduct in court to “derive from the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings” (loc. cit., p. 30, § 34), and to that of Putz v. Austria (judgment of 22 February 1996, Reports of Judgments and Decisions 1996-I). The third criterion, the nature and degree of severity of the penalty, was clearly not relevant. 35. The applicant stated that the case before the Court concerned the imposition of a fiscal penalty, which had to be equated with a criminal sanction. 36. The Commission expressed the opinion that although the proceedings before the Supreme Court had been limited to a procedural issue, namely whether the Court of Appeal had been right to declare the applicant’s appeal inadmissible for failure to comply with a procedural requirement, the case had nonetheless concerned the determination of a “criminal charge”. Had the Supreme Court come to the conclusion that the Court of Appeal had erred in so doing, it would have recovered full jurisdiction to rule on the merits of the case (section 25 of the Taxation Disputes (Administrative Jurisdiction) Act – see paragraph 26 above). The Commission’s Delegate, in his written observations (see paragraph 4 above), added that the Supreme Court in its decision had addressed the applicant’s argument that the levying of court registration fees was not permissible in cases concerning a “criminal charge”; in so doing it had ruled on the important question of access to court in criminal cases. This implied that, as a matter of national law also, the proceedings in question belonged to the criminal sphere. 37. The Court observes that none of those taking part in the proceedings before it have denied that the fiscal penalty imposed on the applicant (see paragraph 8 above) was a “criminal sanction”. The Court finds no reason to consider that it was not (see, as a recent authority, the A.P., M.P. and T.P. v. Switzerland judgment of 29 August 1997, Reports 1997-V, p. 1488, §§ 39 ‑ 43). Article 6 accordingly entitled the applicant to a procedure before a court. Netherlands law in fact provides for such a procedure in the form of an appeal to the Taxation Division of the Court of Appeal (see paragraphs 18 and 19 above). 38. The President of the Taxation Division on 23 March 1990 declared the applicant’s appeal inadmissible on the sole ground that the court registration fee had not been paid (see paragraph 10 above). After the applicant had lodged an objection, this decision was upheld on 23 April 1990 by the Taxation Division (see paragraph 11 above). The applicant’s grounds of appeal on points of law to the Supreme Court were thus limited to the question whether or not the Court of Appeal ought to have declared the applicant’s appeal admissible – which the Supreme Court answered in the negative (see paragraphs 13 and 16 above). 39. The Supreme Court had jurisdiction to quash the decision of the Court of Appeal on the grounds adduced or ex officio on other grounds. Had it done so, it would have had full jurisdiction to substitute its own decision on the merits for that of the Court of Appeal, ruling on the basis of the case file before it, or else to refer the case back to the Court of Appeal which had given the decision appealed against or one of the other courts of appeal for a complete rehearing if necessary (section 25 of the Taxation Disputes (Administrative Jurisdiction) Act – see paragraph 26 above). However, it did not, for reasons which it is not for the European Court to enter into (see paragraphs 16 and 32–33 above). The effect of the decision of the Supreme Court was to ratify the imposition of the fiscal penalty on the applicant. It was thus decisive for the determination of the “criminal charge” leading to the imposition on him of the penalty. 40. That being so, the fact that the applicant’s appeal on points of law to the Supreme Court and the latter’s decision were limited to a preliminary question of a procedural nature cannot suffice to find that Article 6 § 1 is inapplicable. The Court must accordingly rule on the question whether the criminal proceedings against the applicant complied with that provision. B. Compliance with Article 6 § 1 41. The applicant and the Commission concurred in considering that Article 6 § 1 had been violated by the fact that the applicant had not had the opportunity to respond to the advocate-general’s advisory opinion to the Supreme Court. The Government, for their part, conceded that if the Court were to hold that Article 6 § 1 was applicable then a violation would have to be found. 42. The Court notes that for the present purposes the essential features of the procedure of the Netherlands Supreme Court and that of the Belgian Court of Cassation are similar. Firstly, the purpose of the advocate-general’s advisory opinion is to assist the Supreme Court and to help ensure that its case-law is consistent. Secondly, it is the duty of the Procurator-General’s department at the Supreme Court to act with the strictest objectivity (see inter alia and mutatis mutandis, the Vermeulen v. Belgium judgment of 20 February 1996, Reports 1996-I, p. 233, §§ 29 and 30, and Van Orshoven v. Belgium judgment of 25 June 1997, Reports 1997-III, pp. 1050 ‑ 51, §§ 37 and 38). As in the Belgian cases referred to, the Court considers, however, that great importance must be attached to the part played in the proceedings before the Supreme Court by the member of the Procurator-General’s department, and more particularly to the content and effects of his submissions. These contain an opinion which derives its authority from that of the Procurator-General’s department itself. Although it is objective and reasoned in law, the opinion is nevertheless intended to advise and accordingly influence the Supreme Court (see the above-mentioned Vermeulen judgment, p. 233, § 31, and Van Orshoven judgment, p. 1051, § 39). 43. The Court has already found that the outcome of the proceedings before the Supreme Court determined a “criminal charge” against the applicant (see paragraphs 39–40 above). Regard being had, therefore, to what was at stake for the applicant in the proceedings and to the nature of the advisory opinion of the advocate-general, the fact that it was impossible for the applicant to reply to it before the Supreme Court took its decision infringed his right to adversarial proceedings. That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (see the above-mentioned Vermeulen judgment, p. 234, § 33, and the Van Orshoven judgment, p. 1051, § 41). There has accordingly been a violation of Article 6 § 1 of the Convention. II. application of article 50 of the convention 44. Article 50 of the Convention provides as follows: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” 45. The applicant did not claim damages. A. Costs and expenses 46. The applicant claimed the following sums: (a) Court registration fee for the Supreme Court proceedings: 300 Netherlands guilders (NLG); (b) Travel expenses incurred in order to attend the hearing of the Taxation Division of the Leeuwarden Court of Appeal: NLG 180; (c) Working time spent in connection with the proceedings before the Leeuwarden Court of Appeal and the Supreme Court: NLG 4,050; (d) Office expenses: NLG 100. His claims thus came to a total of NLG 4,630. 47. The Government argued that these sums were for the most part connected with the proceedings before the domestic courts. The violation, if violation there had been, had occurred at the very end of the domestic proceedings, after these expenses had allegedly been incurred. The applicant was accordingly entitled only to reimbursement of expenses not explicitly related to the domestic proceedings, which as appeared from his claim could not amount to more than NLG 100. 48. The Commission’s Delegate considered that the applicant should be awarded compensation for all costs and expenses referable to the Supreme Court proceedings. A fair estimate of these was in his view NLG 1,500. 49. The Court notes that the violation found relates solely to the failure to offer the applicant the opportunity to respond to the advocate-general’s advisory opinion to the Supreme Court. Deciding on an equitable basis, the Court awards the applicant NLG 1,000. B. Default interest 50. According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of the adoption of the present judgment is 6% per annum. | The Court found that the outcome of the proceedings before the Supreme Court determined a criminal charge against the applicant. Regard being had to what was at stake for the applicant in the proceedings and to the nature of the advisory opinion of the Advocate-General, the fact that it had been impossible for the applicant to reply to it before the Supreme Court took its decision had infringed his right to adversarial proceedings, which right meant in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision. The Court therefore held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention. |
168 | Sterilisation operations | II. RELEVANT DOMESTIC LAW, PRACTICE AND RELEVANT INTERNATIONAL MATERIALS 47. The relevant domestic law, practice and international materials are set out in the judgment of V.C. v. Slovakia, no. 18968/07, § § 57-86, 8 November 2011. 48. In addition, the following information is relevant to the present case. 49. The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (Council of Europe Treaty Series No. 164) was ratified by Slovakia on 15 January 1998 and entered into force in respect of Slovakia on 1 December 1999. The corresponding notification, together with the text of the Convention, was published in the Collection of Laws under number 40/2000 on 10 February 2000. Article 6 § 2 reads as follows: “Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.” 50. Section 13(1) of the Health Care Act 1994 (“the 1994 Act”), in force at the relevant time, made medical treatment subject to the patient ’ s consent. A patient ’ s consent to medical procedures of a particularly serious character or which substantially affected a person ’ s future life had to be given in writing or in another provable manner (section 13(2)). 51. Pursuant to section 13(5) of the 1994 Act, in the case of patients under the age of majority consent to medical procedures of a particularly serious character within the meaning of section 13(2) was to be given by their representative upon the recommendation of a group of at least three experts. Patients over the age of sixteen who were deemed to be intellectually capable of assessing the envisaged procedure had to give their consent to such a procedure as well. The only exception to the foregoing concerned indispensable medical procedures which could not be delayed (section 13(6)). 52. Regulation 32/1965 (“the Regulation”) governed compensation for pain and impediments to a person ’ s integration in society which resulted from an injury, occupational disease or other damage to one ’ s health. It was repealed with effect from 1 January 2009. 53. Section 2 (1) of the Regulation provided for compensation for pain resulting from damage to a person ’ s health, and for subsequent medical treatment and the elimination of the effects of such damage. The amount of the compensation for pain was to be determined in accordance with the principles and rates attached to the Regulation. It was to correspond to the scope of the damage to one ’ s health and the course of its treatment. 54. Section 4(1) of the Regulation governed compensation for damage to one ’ s health which demonstrably entailed negative consequences for the everyday life of the person concerned, for satisfying his or her living and social needs or for fulfilling his or her role in society. The compensation granted was to correspond to the nature of such negative consequences and their expected prognosis, and should reflect the extent to which a person ’ s life and integration in society were affected. 55. Pursuant to section 6(1) of the Regulation, compensation under section 4(1) of the Regulation was to be determined pursuant to the number of points which a medical expert attributed to a particular case on the basis of the rates attached to the Regulation. Paragraph 2 of section 6 allowed for the number of points assigned to be increased by up to one hundred per cent, depending on: (i) the prospects which the injured person had at the moment when his or her health was damaged; (ii) the injured person ’ s family life; or (iii) the injured person ’ s involvement in politics, culture or sport, their profession and/or their level of education. 56. Section 7 of the Regulation governed the amount of compensation. Its paragraph 2 limited the overall compensation to the equivalent of approximately EUR 8, 000. Finally, paragraph 3 of section 7 entitled the courts to increase the award over and above the sums foreseen by the Regulation where it was justified by particular circumstances. THE LAW I. THE GOVERNMENT ’ S OBJECTION AS TO THE STATUS OF THE APPLICANT AS A VICTIM 57. The Government argued that the applicant had lost her status as a victim because the domestic courts had acknowledged, in substance, a breach of her rights and had granted compensation to her in that respect. In the domestic proceedings the applicant had not shown that the impact of the sterilisation justified a higher compensation award. 58. The applicant maintained that the domestic authorities had neither acknowledged a breach of her rights, nor had they granted appropriate compensation to her. 59. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of victim status under Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; or Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). 60. In the present case, the applicant relied on her rights under Articles 3, 8 and 12 of the Convention in the civil proceedings. The civil courts acknowledged that her sterilisation had been unlawful due to the fact that her mother had not signed the request. However, they did not accept the applicant ’ s arguments about the particularly serious character of the breach of her rights (see paragraphs 30 and 3 3 above ). It does not appear from their reasoning that the civil courts considered the circumstances of the case from the perspective of the international standards on which the applicant had relied ( compare and contrast R.R. v. Poland, no. 27617/04, §§ 101-102, 2 6 May 2011 ). 61. In the context of the criminal proceedings, the prosecuting authorities concluded that the applicant had not suffered irreversible damage to her health and that the doctors involved had not committed an offence. 62. Subsequently, the Constitutional Court did not deal with the substance of the applicant ’ s complaints under the Convention. It addressed only the procedural aspects of the case (see paragraph 46 above). The Court reiterates that it qualified a similar approach, in a different case which also concerned the sterilisation of a Roma woman, as amounting to excessive formalism (see V.C. v. Slovakia (dec.), no. 18968/07, 16 June 2009). 63. Even assuming that by their judgments the civil courts acknowledged to an acceptable extent the breach of the rights which the applicant alleges, the Court notes that they awarded her the equivalent of EUR 1, 593. In the judgment of V.C. v. Slovakia (cited above, §§ 120, 155 and 184), which also concerned sterilisation of a Roma woman in a public hospital, the Court found a breach of Articles 3 and 8 of the Convention and awarded the applicant EUR 31, 000 as just satisfaction. The Court is therefore of the view that, having regard to the circumstances of the case, the award at the domestic level cannot be regarded as financial redress commensurate with the nature of the damage alleged by the present applicant. 64. The Government ’ s objection that the applicant ceased to be a victim within the meaning of Article 34 of the Convention must accordingly be dismissed. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 65. The applicant complained that she had been subjected to inhuman and degrading treatment on account of her sterilisation without her and her representative ’ s full and informed consent, and that the authorities had failed to carry out a thorough, fair and effective investigation into the circumstances surrounding her sterilisation. She relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 66. The Government contested that argument. A. Admissibility 67. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Alleged ill-treatment of the applicant (a) The parties ’ submissions (i) The applicant 68. The applicant, with reference to the arguments which she had raised in the domestic proceedings, maintained that her sterilisation had not been a life-saving intervention and that it had had a lasting impact on her physical and psychological health, her relationship with her husband, and on her family and had affected her position within the Roma community. It had amounted to treatment contrary to Article 3 of the Convention. (ii) The Government 69. The Government argued that the applicant ’ s medical records included a sterilisation request signed by her and that the sterilisation committee had approved the procedure. It had been established in the course of the delivery that the applicant ’ s uterus was seriously damaged to an extent which had justified, from the medical point of view, a hysterectomy. Despite a risk of complications, the doctors had decided to carry out reconstructive surgery instead, in view of the applicant ’ s age and also for the sake of maintaining the applicant ’ s menstrual cycle. Subsequently, they had carried out the sterilisation in accordance with the wish which the applicant had earlier expressed and confirmed in writing. 70. The Government maintained that the applicant had not been subjected to treatment contrary to Article 3 of the Convention, as the doctors had acted with the intention of protecting her life and health, as well as the life of her child. Had the doctors deliberately wished to deprive the applicant of her reproductive capacity, they would have carried out a hysterectomy which, as an expert had confirmed, would have been considered as a life-saving intervention given the state of the applicant ’ s reproductive organs. While it was true that the applicant ’ s mother had not formally agreed to the procedure, it was to be noted that the applicant had previously given birth to a child and that she had reached the age of majority only ten days after her sterilisation. (b) The Court ’ s assessment (i) Recapitulation of the relevant principles 71. The relevant principles established in the Court ’ s case-law are set out, for example, in V.C. v. Slovakia, judgment cited above, §§ 100-105, with further references. 72. That case concerned the sterilisation of a Roma woman without her informed consent. The procedure had been carried out immediately after she had delivered a child via a caesarean section on the basis of a consent which she had been asked to give while in labour. 73. In V.C. v. Slovakia (see §§ 106-120) the Court held that sterilisation as such was not, in accordance with generally recognised standards, a life ‑ saving medical intervention. Where sterilisation was carried out without the informed consent of a mentally competent adult, it was incompatible with the requirement of respect for human freedom and dignity. In that case the Court concluded that, although there was no indication that the medical staff had acted with the intention of ill-treating the applicant, they had nevertheless acted with gross disregard for her right to autonomy and choice as a patient. Such treatment had been in breach of Article 3 of the Convention. (ii) Assessment of the facts of the case 74. It has not been disputed between the parties that the present applicant ’ s sterilisation was not a life-saving medical intervention and that it was carried out without the informed consent of the applicant and/or her representative. Similarly as in the case of V.C., the procedure was therefore incompatible with the requirement of respect for the applicant ’ s human freedom and dignity. The fact that the doctors had considered the procedure necessary because the applicant ’ s life and health would be seriously threatened in the event of her further pregnancy cannot affect the position (see also V.C. v. Slovakia, cited above, §§ 76-77 and 105, with further references). 75. It therefore remains to be determined whether the procedure and its repercussions attained a level of severity justifying its qualification as treatment contrary to Article 3. 76. The applicant submitted, and it was not contradicted by the medical records or contested by the Government, that she had been asked to sign a typed text indicating that she requested sterilisation after tranquilising premedication had been administered in preparation for the envisaged caesarean section. Thus the applicant was in labour and was under the influence of medication. A member of the medical staff asked her to sign the sterilisation request, and she was prompted by one of the doctors present to do so with an explanation that she would otherwise die. The applicant therefore did not object to signing the paper with the assistance of a hospital staff member. 77. For the Court, such a way of proceeding, by removing one of the important capacities of the applicant and making her formally agree to such a serious medical procedure while she was in labour, when her cognitive abilities were affected by medication, and then wrongfully indicating that the procedure was indispensable for preserving her life, violated the applicant ’ s physical integrity and was grossly disrespectful of her human dignity. 78. Similarly as in V.C. v. Slovakia (cited above, § 119), the information available does not indicate that the medical staff acted with the intention of ill-treating the applicant. They nevertheless acted with gross disregard for her human freedom, including the right to freely decide, together with her representative and after having had the possibility of discussing the matter with her partner, whether she consented to the procedure. 79. The Court notes that at the time of the procedure the applicant was seventeen years old, still legally underage, and at an early stage of her reproductive life. The sterilisation grossly interfered with her physical integrity, as she was thereby deprived of her reproductive capacity. 80. Given its serious nature and consequences, the sterilisation procedure, including the manner in which the applicant was asked to agree to it, was liable to arouse in her feelings of fear, anguish and inferiority and to entail lasting suffering. As to the last- mentioned point, a psychologist admitted that the applicant ’ s depressive and pessimistic moods could be linked to her inability to conceive. In view of the documents which the applicant produced in the domestic proceedings (see paragraph 28 above), the Court finds no reason to doubt that her inability to have children strongly diminished her position as a woman living within a Roma community and entailed mental suffering. The treatment to which the applicant was subjected as described above attained the threshold of severity required to bring it within the scope of Article 3. 81. There has accordingly been a violation of Article 3 of the Convention on account of the applicant ’ s sterilisation. 2. Alleged failure to conduct an effective investigation 82. The applicant maintained that the investigation into her case had not been effective as required by Article 3. 83. The Government argued that the relevant aspects of the case had been examined in detail by prosecuting authorities at three levels in the context of the criminal proceedings instituted by the applicant, as well as in the context of the civil proceedings which had led to the finding that the sterilisation had been contrary to the relevant law. 84. The Court reiterates that Articles 1 and 3 of the Convention impose procedural obligations on the Contracting Parties to conduct an effective official investigation which must be thorough and expeditious. However, the failure of any given investigation to produce conclusions does not, by itself, mean that it was ineffective: an obligation to investigate is not an obligation of result, but of means. Furthermore, in the specific sphere of medical negligence the obligation to carry out an effective investigation may, for instance, also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained (for recapitulation of the relevant principles see V.C. v. Slovakia, cited above, §§ 123-125, with further references). 85. In the present case, the civil courts acknowledged that the applicant ’ s sterilisation had been in disregard of the statutory requirements and awarded compensation to her. In addition, the applicant ’ s criminal complaint was examined by prosecuting authorities at three levels. The General Prosecutor ’ s Office acknowledged that the applicant had been sterilised contrary to the relevant law as her representative had not consented to the procedure. That action did not, however, constitute a criminal offence in the particular circumstances. 86. Thus the applicant had the opportunity to have the actions of the hospital staff which she considered unlawful examined by the domestic authorities and the liability of those involved established. While it is true that the civil proceedings lasted four years and nine months, the Court notes that during that period courts at two levels of jurisdiction examined the case twice, and that the proceedings concerning the applicant ’ s criminal complaint, which lasted eighteen months, were conducted expeditiously. 87. In view of the foregoing, the applicant ’ s complaint that the respondent State failed to carry out an effective investigation into her sterilisation, contrary to its obligations under Article 3, cannot be accepted. 88. There has therefore been no procedural violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 89. The applicant complained that her right to respect for her private and family life had been violated as a result of her sterilisation, which had been carried out contrary to the requirements of the relevant law and without her and her mother ’ s full and informed consent. She relied on Article 8 of the Convention which, in its relevant parts, provides: “1. Everyone has the right to respect for his private and family life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 90. The Government admitted that a medical intervention without the informed consent of the person concerned amounted to an interference with that person ’ s private life. 91. The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 92. The applicant maintained that her private and family life had been severely affected as a result of the sterilisation procedure. 93. The Government pointed to the fact that the domestic courts had acknowledged that the requirements of domestic law had not been complied with in the applicant ’ s case. They further argued that the medical staff had considered the procedure necessary with a view to protecting the applicant ’ s life and health. 94. The relevant case-law is recapitulated in V.C. v. Slovakia, cited above, §§ 138-142. 95. The applicant ’ s sterilisation affected her reproductive health status and had repercussions on various aspects of her private and family life. It therefore amounted to interference with her rights under Article 8. It was carried out contrary to the requirements of domestic law, as the applicant ’ s mother had not given her consent to the procedure. This was not disputed between the parties. 96. In addition, the Court has previously held, with reference to both international and domestic documents, that at the relevant time an issue arose in Slovakia as regards sterilisations and their improper use, including disregard for informed consent – required by the international standards by which Slovakia was bound. Such practice was found to affect vulnerable individuals belonging to various ethnic groups. However, Roma women had been at particular risk due to a number of shortcomings in domestic law and practice at the relevant time (see V.C. v. Slovakia, cited above, §§ 146-149 and 152-153). 97. For reasons which are set out in detail in that judgment and which are relevant as regards the circumstances of the present case (see also paragraph 44 above), the Court finds that the respondent State failed to comply with its positive obligation under Article 8 to secure through its legal system the rights guaranteed by that Article, by putting in place effective legal safeguards to protect the reproductive health of, in particular, women of Roma origin. 98. Accordingly, the failure to respect the statutory provisions combined with the absence at the relevant time of safeguards giving special consideration to the reproductive health of the applicant as a Roma woman resulted in a failure by the respondent State to comply with its positive obligation to secure to her a sufficient measure of protection enabling her to effectively enjoy her right to respect for her private and family life. 99. There has therefore been a breach of Article 8 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION 100. The applicant further complained that her right to found a family had been breached on account of her sterilisation. She relied on Article 12 of the Convention, which provides: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” 101. The applicant maintained, in particular, that her marital life continued to be problematic to due her inability to conceive and that the domestic courts had disregarded her arguments in that respect. 102. The Government argued that the applicant herself had agreed to her sterilisation. That procedure was not irreversible. If the applicant wished to have more children, it was open to her to undergo a sterilisation reversal operation or conceive from in-vitro fertilisation. The Government expressed their readiness to bear the costs of such an operation. They cautioned, however, that a fresh pregnancy would represent a serious danger to the applicant and her child given the applicant ’ s health status. 103. The Court notes that this complaint is linked to the ones examined above and must therefore likewise be declared admissible. 104. The sterilisation performed on the applicant had serious repercussions on her private and family life, and the Court found above that it was in breach of Article 8 of the Convention. In view of that finding, and also in regard of the fact that the applicant married and has lived with the father of her children after the sterilisation procedure, the Court considers that a further examination of whether the facts of the case also give rise to a breach of her right to marry and to found a family is not called for. 105. It is therefore not necessary to examine separately the applicant ’ s complaint under Article 12 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 106. The applicant complained that she had had no effective remedy at her disposal in respect of her complaints about the infringement of her rights guaranteed by Articles 3, 8 and 12 of the Convention. She relied on Article 13, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 107. The Government contested that argument. 108. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms. Its effect is to require the provision of a domestic remedy capable of dealing with the substance of an “arguable complaint” under the Convention and of granting appropriate relief (see, amongst other authorities, Aksoy v. Turkey, 25 September 1996, § 95, Reports 1996-VI). The word “remedy” within the meaning of Article 13 does not, however, mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutatis mutandis, Bensaid v. the United Kingdom, no. 44599/98, § 56, ECHR 2001-I). 109. In the present case, the applicant was able to have her case reviewed by civil courts at two levels of jurisdiction which acknowledged that she had been sterilised contrary to the relevant law and made a compensation award under Regulation 32/1965. Furthermore, the relevant facts of the case were assessed from the perspective of the criminal law by prosecuting authorities at three levels. Shortcomings in the sterilisation procedure were confirmed in that context (see paragraphs 43 and 44 above). The applicant thus had effective remedies within the meaning of Article 13 in respect of her complaint about her sterilisation. The fact that no person was convicted of a criminal offence and that the Constitutional Court subsequently refused to address the substance of the applicant ’ s complaints under Articles 3, 8 and 14 of the Convention does not affect the position (see also V.C. v. Slovakia, cited above, § 166). 110. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 111. Lastly, the applicant complained that she had been discriminated against on the grounds of her race/ethnic origin and sex in the enjoyment of her rights under Articles 3, 8 and 12 of the Convention. She alleged a violation of Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 112. The Government argued that the applicant had not exhausted domestic remedies, as she had failed to submit relevant arguments in the domestic proceedings concerning her case. It had been also open to the applicant to seek redress in respect of her alleged discriminatory treatment by means of an action for protection of her personal rights under Articles 11 et seq. of the Civil Code. In any event, the complaint was manifestly ill ‑ founded, as the applicant had failed to show that the hospital staff had discriminated against her in the context of the sterilisation procedure. 113. The applicant maintained that at the relevant time no anti ‑ discrimination laws had been enacted in Slovakia and that the Government ’ s objection relating to exhaustion of domestic remedies should be dismissed. The applicant further argued that she had unsuccessfully sought redress as regards her allegation that sterilisation had been performed on her due to her ethnic origin in both criminal and civil proceedings and, ultimately, before the Constitutional Court. 114. The Court notes that in the context of the civil proceedings the applicant argued that her ethnic origin had motivated the doctors to sterilise her. Subsequently, she alleged a breach of her rights, including those under Article 14 of the Convention, before the Constitutional Court, which is the supreme judicial authority in Slovakia charged with the protection of individuals ’ fundamental rights and freedoms guaranteed by the Constitution and also by the Convention. 115. Thus the applicant afforded the domestic authorities the opportunity to redress by their own means the violation of her Convention right in issue. As regards the argument that the applicant should have sought redress by means of an action for protection of her personal rights, the Court recalls that an applicant who has used a remedy which is apparently effective and sufficient cannot be required to have tried others that were also available but probably no more likely to be successful (see Adamski v. Poland (dec.), no. 6973/04, 27 January 2009, with further references). It is also relevant in this respect that the Constitutional Court did not indicate in its decision that the applicant should have used the other civil remedy cited by the Government prior to lodging her constitutional complaint. 116. In the above circumstances, the Government ’ s objection relating to the applicant ’ s failure to exhaust domestic remedies cannot be upheld. 117. The Court further considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 118. The applicant reiterated that her race/ethnic origin had played a determining role in her sterilisation and that she had also been discriminated against on the grounds of her sex in that respect. 119. The Government were in disagreement with the applicant. 120. The applicant alleged a breach of Article 14 read in conjunction with Articles 3, 8 and 12 of the Convention. In the circumstances of the case, the Court considers it most natural to entertain the discrimination complaint in conjunction with Article 8, as the interference in issue affected one of her important bodily capacities and entailed numerous adverse consequences for, in particular, her private and family life. 121. The Court has previously found that the practice of sterilisation of women without their prior informed consent affected vulnerable individuals from various ethnic groups. In view of the documents available, it cannot be established that the doctors involved acted in bad faith, that the applicant ’ s sterilisation was a part of an organised policy, or that the hospital staff ’ s conduct was intentionally racially motivated. At the same time, the Court finds no reason for departing from its earlier finding that shortcomings in legislation and practice relating to sterilisations were liable to particularly affect members of the Roma community (see V.C. v. Slovakia, cited above, §§ 177-178; and also paragraphs 9 6 -9 7 above ). 122. In that connection, the Court has found that the respondent State failed to comply with its positive obligation under Article 8 of the Convention to secure to the applicant a sufficient measure of protection enabling her, as a member of the vulnerable Roma community, to effectively enjoy her right to respect for her private and family life in the context of her sterilisation (see paragraphs 9 8 -9 9 above). 123. In these circumstances, the Court does not find it necessary to separately determine whether the facts of the case also gave rise to a breach of Article 14 of the Convention. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 124. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 125. The applicant claimed 50, 000 euros (EUR) in respect of non ‑ pecuniary damage. She submitted that she had been sterilised at an early stage of her reproductive life and that the procedure had had lasting consequences for her. 126. The Government considered the sum claimed excessive. In case of a finding of a breach of the applicant ’ s rights, they submitted that any award should be proportionate to the circumstances of the case. 127. The Court notes that the applicant obtained partial redress at the domestic level (see paragraph 29 above). Having regard to the circumstances of the case seen as a whole and deciding on equitable basis, the Court awards the applicant EUR 25, 000 in respect of non-pecuniary damage. B. Costs and expenses 128. The applicant also claimed EUR 10, 436.07 for costs and expenses incurred in both the domestic proceedings and before the Court. That sum included EUR 9, 848.07 in respect of the costs of her legal representation and EUR 588 in respect of administrative expenses. 129. The Government objected that the sum claimed for the legal costs was excessively high and that any reimbursement of administrative costs and expenses should correspond to sums demonstrably incurred. 130. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5, 000 covering costs under all heads. C. Default interest 131. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court concluded that the sterilisation of the applicant had been in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It further held that there had been no violation of Article 3 as concerned the applicant’s allegation that the investigation into her sterilisation had been inadequate. It lastly found a violation of Article 8 (right to respect for private and family life) of the Convention. |
952 | Restrictions on voting rights based on a residence criterion and exercise of the right to vote for non-resident citizens | II. RELEVANT DOMESTIC LAW AND INTERNATIONAL CASE-LAW ... C. New Caledonia Institutional Act (no. 99-209) of 19 March 1999 Chapter I: Distribution of powers among the State, New Caledonia, provinces and municipalities ... Section 1: Powers vested in the State and New Caledonia ... Article 62 “Congress shall be the deliberative body of New Caledonia. It shall have fifty-four members: seven from the Loyalty Islands provincial assembly, fifteen from the Northern provincial assembly and thirty-two from the Southern provincial assembly. Members of Congress shall be elected for a five-year term in the manner prescribed in Part V. ... ” Article 73 “The power to initiate territorial laws and regulations shall be vested conjointly in the Government and the members of Congress .” Section 2: Powers assigned to Congress Article 83 “The powers assigned to New Caledonia by Chapter I of Part II shall be exercised by Congress, with the exception of those conferred by this Act on the Government or the President of the Government.” Article 84 “ Congress shall adopt the budget and approve the accounts for New Caledonia. ...” Article 86 “In criminal matters, Congress may make offences against territorial laws and regulations punishable by fines that are commensurate with the classification of petty and more serious offences [ contraventions et délits ] and do not exceed the maximum amount applicable for offences of the same nature under national legislation and regulations. It may also make such offences subject to such additional penalties as are provided for in national legislation and regulations for offences of the same nature. Congress may also make provision for administrative penalties for any offence. ” ... Chapter II: Territorial laws Article 99 “ Instruments by which Congress enacts provisions on the matters listed in the following paragraph shall be designated as'territorial laws'. Territorial laws may be enacted in the following areas, being those in which powers are exercised by New Caledonia, or from the date on which they are transferred pursuant to this Act: (1) symbols of identity and name as referred to in Article 5; (2) rules on the assessment and collection of taxes, duties or charges of any kind; (3) basic principles governing labour law, trade-union law and social-security law; (4) rules on aliens'access to employment; (5) customary civil status, rules governing customary land and customary assemblies; boundaries of customary areas; procedure for appointing members of the Customary Senate and the customary councils; (6) rules governing hydrocarbons, nickel, chromium and cobalt; (7) rules governing publicly owned land in New Caledonia and the provinces, subject to the provisions of Article 127, point (13); (8) rules on access to employment, pursuant to Article 24; (9) rules on civil status and capacity, systems of matrimonial property, inheritance and voluntary dispositions; (10) basic principles concerning ownership, rights in rem and civil and commercial obligations; (11) apportionment among the provinces of the operating grant and the equipment grant referred to in paragraphs I and II of Article 181; and (12) powers transferred and the schedule for their transfer, as provided in Section 1 of Chapter I of Part II.” ... Part V: Elections to Congress and the provincial assemblies Chapter II: Electorate and electoral rolls Article 188 “I. Congress and the provincial assemblies shall be elected by an electorate composed of persons who (a) satisfy the conditions for registration on New Caledonia's electoral rolls for the ballot of 8 November 1998; or (b) are listed in the appended table and have been resident in New Caledonia for ten years on the date of the election to Congress and the provincial assemblies; or (c) have reached the age of majority after 31 October 1998 and can either show that they have been resident in New Caledonia for ten years prior to 1998, or have a parent who was eligible to vote in the ballot of 8 November 1998, or have a parent who is listed in the appended table and has been resident in New Caledonia for ten years on the date of the election. ... ” D. Views of the United Nations Human Rights Committee, dated 15 July 2002 “ Examination of the merits 11.2 The Committee has to determine whether the restrictions imposed on the electorate for the purposes of the local referendums of 8 November 1998 and in 2014 or thereafter constitute a violation of articles 25 and 26 of the Covenant, as the authors maintain. ... 13.3 In the present case, the Committee has taken note of the fact that the local ballots were conducted in the context of a process of self-determination of the population of New Caledonia. ... 13.5 In relation to the authors'complaints, the Committee observes, as the State party indeed confirms, that the criteria governing the right to vote in the referendums have the effect of establishing a restricted electorate and hence a differentiation between (a) persons deprived of the right to vote, including the author(s) in the ballot in question, and (b) persons permitted to exercise this right, owing to their sufficiently strong links with the territory whose institutional development is at issue. The question which the Committee must decide, therefore, is whether this differentiation is compatible with article 25 of the Covenant. The Committee recalls that not all differentiation constitutes discrimination if it is based on objective and reasonable criteria and the purpose sought is legitimate under the Covenant. 13.6 The Committee has, first of all, to consider whether the criteria used to determine the restricted electorates are objective. ... 13.8 The Committee considers that the above-mentioned criteria are based on objective elements for differentiating between residents as regards their relationship with New Caledonia, namely the different forms of ties to the territory, whether specific or general – in conformity with the purpose and nature of each ballot. The question of the discriminatory or non-discriminatory effects of these criteria nevertheless arises. ... 13.10 ... the Committee considers that the criterion used for the 1998 referendum establishes a differentiation between residents as regards their relationship to the territory, on the basis of the length of'residence'requirement (as distinct from the question of cut-off points for length of residence), whatever their ethnic origin or national extraction. ... 13.11 The Committee therefore considers that the criterion used for the 1998 referendum did not have the purpose or effect of establishing different rights for different ethnic groups or groups distinguished by their national extraction. ... 13.13 Finally, the Committee considers that in the present case the criteria for the determination of restricted electorates make it possible to treat differently persons in objectively different situations as regards their ties to New Caledonia. 13.14 The Committee also has to examine whether the differentiation resulting from the above-mentioned criteria is reasonable and whether the purpose sought is lawful vis-à-vis the Covenant. ... 13.16 The Committee recalls that, in the present case, article 25 of the Covenant must be considered in conjunction with article 1. It therefore considers that the criteria established are reasonable to the extent that they are applied strictly and solely to ballots held in the framework of a self-determination process. ... ... 13.18 Consequently, the Committee considers that the criteria for the determination of the electorates for the referendums of 1998 and 2014 or thereafter are not discriminatory, but are based on objective grounds for differentiation that are reasonable and compatible with the provisions of the Covenant. ... 14.2 The Committee considers that it is not in a position to determine the length of residence requirements. It may, however, express its view on whether or not these requirements are excessive. In the present case, the Committee has to decide whether the requirements have the purpose or effect of restricting in a disproportionate manner, given the nature and purpose of the referendums in question, the participation of the'concerned'population of New Caledonia. ... 14.5 The Committee considers, first, that the cut-off points adopted do not have a disproportionate effect, given the nature and purpose of the referendums in question, on the authors'situation, particularly since their non-participation in the first referendum manifestly has no consequences for nearly all of them as regards the final referendum. 14.6 The Committee further considers that each cut-off point should provide a means of evaluating the strength of the link to the territory, in order that those residents able to prove a sufficiently strong tie are able to participate in each referendum. The Committee considers that, in the present case, the difference in the cut-off points for each ballot is linked to the issue being decided in each vote: the 20-year cut-off point – rather than 10 years as for the first ballot – is justified by the time frame for self-determination, it being made clear that other ties are also taken into account for the final referendum. 14.7 Noting that the length of residence criterion is not discriminatory, the Committee considers that, in the present case, the cut-off points set for the referendum of 1998 and referendums from 2014 onwards are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided. This being the case, these cut-off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who, over and above their ethnic origin or political affiliation, have helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory. 15. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not disclose a violation of any article of the Covenant.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 A. The parties'submissions 18. The applicant relied on Article 3 of Protocol No. 1, which provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 19. He submitted that as a university lecturer, he was bound by a residency rule and that, moreover, he could not remain registered on the electoral rolls of a municipality in mainland France. Accordingly, although he was obliged to live in the place where he worked, he was not able to vote in the territory. He pointed out that he had applied to be registered on the special electoral roll for the election of members of Congress. What that entailed, in his submission, was not a ballot on self-determination which could be restricted to the population concerned. Rather, it involved the election of a body empowered to pass legislation in the form of “territorial laws ”, which could, among other things, establish criminal offences punishable by up to ten years'imprisonment. 20. The Government relied as their main submission on Articles 21 and 99 of the Institutional Act of 19 March 1999. They acknowledged that the powers conferred on Congress were extensive, but considered that on account of the significance of the areas in which the State retained jurisdiction, Congress did not have sufficient powers to be regarded as a “legislature” within the meaning of Article 3 of Protocol No. 1 in the same way as the National Assembly and the Senate. 21. In the alternative, they submitted that the residence criterion pursued a legitimate aim and was not disproportionate. They observed, firstly, that the cut-off points as to length of residence addressed the concern expressed by representatives of the local population during the negotiation of the Nouméa Accord that the ballots should reflect the will of the population “ concerned ” and that their results should not be affected by mass voting by recent arrivals in the territory who did not have strong ties with it. The Government pointed out that the ballots were being held as part of a self-determination process and that the system described was incomplete and provisional, as in the case of Mathieu- Mohin and Clerfayt v. Belgium (judgment of 2 March 1987, Series A no. 113). 22. Conditions had been attached to the right to vote since 1988 with a view to increasing cohesion across the territory, enabling it to achieve a better geographical and economic balance and allowing the population to make a free and informed decision about the nature of links between the territory and France by exercising their constitutional right to self-determination. Voters had been eligible to take part in the ballot if they were registered on the territory's electoral roll on polling day and had been continuously resident since the date of the referendum approving the bill. 23. The Government added that the restriction on the right to vote was the direct and necessary consequence of establishing New Caledonian citizenship and that the conditions for being registered on the special electoral roll were identical to those for obtaining such citizenship. Lastly, they stressed that the residence requirement had been instrumental in alleviating a particularly acute and bloody conflict. They accordingly submitted that the aim pursued by the requirement in question was perfectly legitimate. 24. They further submitted that the residence requirement was not disproportionate. The applicant had been registered on the ordinary electoral rolls until his departure and there had been no restriction on his enjoyment of the right to vote in general ballots – in other words, those not solely concerning the territory of New Caledonia. The Government added that only 7.5% of the electorate had been excluded from the referendum of 8 November 1998 and the elections of 9 May 1999, and that most of those had not intended to remain in New Caledonia. Accordingly, the voters excluded had been those who were less concerned by issues relating to the administration of the territory's autonomy and had less of a lasting interest in its problems. 25. The Government relied on the findings of the United Nations Human Rights Committee, which, when the same problem had been referred to it, had expressed the view on 15 July 2002 that the facts before it did not disclose any violation of the International Covenant on Civil and Political Rights. 26. In the further alternative, the Government submitted that the restriction had been justified by compelling local requirements. They referred to Article 56 § 3 of the Convention and to the drafting history of the Convention, emphasising that the purpose of that provision had been to “take into account the autonomy afforded in such matters to certain overseas territories”. They added that when France had ratified the Convention and Protocols Nos. 1 and 4, it had declared that each of those instruments would “apply to the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63 [current Article 56]”. 27. The Government submitted that in the instant case there was positive and conclusive proof of a compelling requirement within the meaning of the Tyrer v. the United Kingdom judgment ( 25 April 1978, Series A no. 26). After a turbulent political and organisational history, the process of institutional development set out in the Institutional Act of 19 March 1999 struck a balance that had created a more peaceful political climate in New Caledonia and enabled the territory to continue its economic and social development. 28. As to the observations by the third parties, the Government observed at the outset that they had been resident in New Caledonia for more than ten years on the date of their intervention and that the outcome of the application was therefore no longer relevant to them, in the light of Article 188 of the Institutional Act of 19 March 1999. 29. The Government further pointed out that the third parties had already referred the same facts to the United Nations Human Rights Committee, which had expressed the view on 15 July 2002 that there had been no violation of the International Covenant on Civil and Political Rights. 30. Having regard to those considerations, the Government submitted that the complaint under Article 3 of Protocol No. 1 did not disclose a violation. B. The third parties'submissions 31. The third parties observed, firstly, that France had not made any reservations limiting the territorial application of the Convention under Article 56 § 1 (former Article 63). They submitted that local requirements, if they referred to the specific legal status of a territory, had to be of a compelling nature. In their submission, there was no objective indication of any such requirements, since a system of universal suffrage was in place. 32. With regard to Article 3 of Protocol No. 1, the third parties emphasised that the word “legislature” did not necessarily mean only the national parliament. The New Caledonian Congress was thus a legislature with the power to enact “ territorial laws ”. They added that, as one of them had continuously enjoyed the unrestricted right to vote in elections to the legislative bodies in New Caledonia since settling permanently in the territory, the very essence of his right to vote had been impaired. Furthermore, the State's margin of appreciation, they argued, was strictly limited by the obligation to observe the fundamental principle underlying Article 3, namely “the free expression of the opinion of the people in the choice of the legislature”. They submitted that that obligation could not be met where New Caledonian electoral legislation provided that each list had to obtain the votes of at least 5 % of registered voters to qualify for a share of the seats and that registered voters not satisfying the residence requirement were excluded from the electorate in question. They added that, in such circumstances, the electorate could not even be regarded as representative of the territory in which they lived. They further argued that this withdrawal of an acquired right breached Article 17 of the Convention. 33. The third parties did not dispute that a State could set a minimum length-of- residence requirement for voters. They contended, however, that such a condition should be interpreted strictly and relied on the freedom to choose one's residence within the meaning of Article 2 of Protocol No.4. 34. The third parties submitted that on account of their respective professions, they would be affected by “ territorial laws ” and would be denied the right to vote for their representatives in Congress despite the fact that they had settled in New Caledonia on a permanent and full-time basis since 1991 and were intending to stay and even retire there. 35. They further maintained that the exclusion of French nationals or naturalised citizens from the New Caledonian electorate as a result of discrimination on the ground of national extraction or parentage infringed Article 14 of the Convention. C. The Court's assessment 36. The Court reiterates at the outset that the word “legislature” does not necessarily mean the national parliament; it has to be interpreted in the light of the constitutional structure of the State in question. In the case of Mathieu- Mohin and Clerfayt, the 1980 constitutional reform in Belgium had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (see Mathieu- Mohin and Clerfayt, cited above, p. 23, § 53, and Matthews v. the United Kingdom [GC], no. 24833/94, § 40, ECHR 1999-I; see also the Commission's decisions on the application of Article 3 of Protocol No. 1 to regional parliaments in Austria ( X v. Austria, no. 7008/75, decision of 12 July 1976, Decisions and Reports (DR) 6, p. 120) and in Germany ( Timke v. Germany, no. 27311/95, decision of 11 September 1995, DR 82-A, p. 158 ). 37. The Court notes that in the instant case the Institutional Act of 19 March 1999 establishes the principle of New Caledonian citizenship, which was one of the major innovations resulting from the Nouméa Accord and the Act of 9 November 1988, and provides for the successive transfer of powers from the State to New Caledonia. General power is vested in the provinces, while the State and New Caledonia are assigned powers in specified areas. 38. Part III of the 1999 Institutional Act deals with the institutions in place in New Caledonia, in particular Congress. It is described as the deliberative assembly of New Caledonia (Article 62) and its members, elected for a five-year term, are members of the provincial assemblies. It manages the ordinary affairs of New Caledonia. The power to initiate territorial laws and regulations is vested conjointly in the Government and the members of Congress (Article 73). 39. Chapter 2 establishes a new category of “territorial laws ”, which are passed by Congress and rank as statute. Territorial laws, whose scope is clearly delimited and extends to only some of the fields in which New Caledonia has rule-making powers, are systematically submitted to the Conseil d'Etat for its opinion and, once enacted, have statutory force. They may also be reviewed by the Constitutional Council, prior to enactment, on an application by the High Commissioner, the Government, the speaker of Congress, the speaker of a provincial assembly or at least eighteen members of Congress. 40. Among its other powers, Congress adopts the budget and approves the accounts for New Caledonia. In criminal matters, it may make offences against territorial laws and regulations punishable by fines that are commensurate with the classification of petty and more serious offences ( contraventions et délits ) and do not exceed the maximum amount applicable for offences of the same nature under French national legislation and regulations. Subject to validation of its decision by means of a law, it may also make provision, in the case of offences against the territorial laws and regulations it passes, for prison sentences that are commensurate with the classification of relatively serious offences ( délits ) and do not exceed the maximum sentences applicable for offences of the same nature under French national legislation and regulations. 41. The Court must ensure that “effective political democracy” is properly served in the territories to which the Convention applies, and in this context, it must have regard not solely to the strictly legislative powers which a body has, but also to that body's role in the overall legislative process. 42. Having regard to the powers conferred on Congress in the 1999 Institutional Act, the Court considers that it is no longer a purely consultative body but has become an institution with a decisive role to play, depending on the issues being dealt with, in the legislative process in New Caledonia. 43. It therefore finds that Congress is sufficiently involved in this specific legislative process to be regarded as part of the “legislature” of New Caledonia for the purposes of Article 3 of Protocol No. 1. 44. The Court must next determine whether it is compatible with that Article to restrict the right to vote in elections to the New Caledonian Congress to persons who have been resident for at least ten years in the territory. 45. The Court reiterates that the rights set out in Article 3 of Protocol No. 1 are not absolute, but may be subject to limitations. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for “implied limitations” (see Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV). 46. Contracting States have a wide margin of appreciation, given that their legislation on elections varies from place to place and from time to time. The rules on granting the right to vote, reflecting the need to ensure both citizen participation and knowledge of the particular situation of the region in question, vary according to the historical and political factors peculiar to each State. The number of situations provided for in the legislation on elections in many member States of the Council of Europe shows the diversity of possible choice on the subject. However, none of these criteria should in principle be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections. For the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another. 47. The State's margin of appreciation, however, is not unlimited. It is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with. It has to satisfy itself that any such conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not thwart “the free expression of the opinion of the people in the choice of the legislature” (see Gitonas and Others v. Greece, judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 233, § 39; Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999 -I; Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II; and Mathieu- Mohin and Clerfayt, cited above, p. 23, § 52). 48. The former Commission and the Court have taken the view that having to satisfy a residence or length-of-residence requirement in order to have or exercise the right to vote in elections is not, in principle, an arbitrary restriction of the right to vote and is therefore not incompatible with Article 3 of Protocol No. 1 (see Hilbe v. Liechtenstein ( dec. ), no. 31981/96, ECHR 1999-VI, and Polacco and Garofalo v. Italy, no. 23450/94, Commission decision of 15 September 1997, DR 90- A, p. 5). 49. In the instant case the 1999 Institutional Act provides for a restricted electorate for elections to the provincial assemblies and Congress. It limits the possibility of taking part in those elections to voters satisfying certain conditions, in particular that of residence in the territory for more than ten years. The applicant's application to be registered on the electoral rolls for elections to the provincial assemblies and Congress was refused on that account. 50. According to the French Government, the cut-off points as to length of residence address the concern expressed by representatives of the local population during the negotiation of the Nouméa Accord that ballots should reflect the will of the population “concerned” and that their results should not be affected by mass voting by recent arrivals in the territory who do not have strong ties with it. Furthermore, the restriction on the right to vote is, in their submission, the direct and necessary consequence of establishing New Caledonian citizenship. 51. The Court considers it possible that the applicant has established ties with New Caledonia and may therefore have felt that some of the above factors were not applicable to his case. However, the law cannot take account of every individual case but must lay down a general rule. Furthermore, the applicant, who has since returned to mainland France, cannot argue that he is affected by the acts of political institutions to the same extent as resident citizens. His position is therefore different from that of a resident citizen, a fact capable of justifying the residence requirement (see Hilbe, cited above). 52. Having regard to those various considerations, the Court finds that the residence requirement pursues a legitimate aim in the instant case. 53. It remains to be determined whether the requirement of ten years'residence in order for the applicant to take part in elections to Congress is proportionate to the aim pursued. 54. It is not disputed in the instant case that the decision not to register the applicant on the special electoral roll was taken in circumstances which left no room for arbitrariness. 55. The Court reiterates, however, that the object and purpose of the Convention requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see, for example, United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, p. 18, § 33, and Matthews, cited above, § 34). 56. In the Polacco and Garofalo case cited above, only those who had been living continuously in the Trentino-Alto Adige Region for at least four years could be registered to vote in elections for the Regional Council, which were held every five years. The former Commission took the view that that requirement was not disproportionate to the aim pursued, given the region's particular social, political and economic situation. It accordingly considered that it could not be regarded as unreasonable to require voters to reside there for a lengthy period of time before they could take part in local elections, in order to acquire a thorough understanding of the regional context so that their vote could reflect the concern for the protection of linguistic minorities. 57. In the instant case, although the applicant did not intend to remain in New Caledonia, he was nonetheless subject to the legislation passed by Congress and, in particular, to criminal statutes which could provide for sentences of up to ten years'imprisonment. The ten-year residence requirement, moreover, corresponds to two terms of office of a member of Congress. Accordingly, that requirement might appear disproportionate to the aim pursued. 58. However, it remains to be determined whether there are local requirements in New Caledonia, within the meaning of Article 56, such that the restriction in question on the right to vote may be deemed not to breach Article 3 of Protocol No. 1. 59. The Court observes that, when depositing the instruments of ratification of the Convention and of Protocol No. 1 on 3 May 1974, France declared that these would apply to “the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63 [ current Article 56 ] of the Convention”. 60. In Tyrer v. the United Kingdom (cited above, pp. 18-19, § 38) the Court held that before ( former ) Article 63 could apply, there would have to be “positive and conclusive proof of a requirement”. Local requirements, if they refer to the specific legal status of a territory, must be of a compelling nature if they are to justify the application of Article 56 of the Convention. 61. The Court notes that New Caledonia's current status reflects a transitional phase prior to the acquisition of full sovereignty and is part of a process of self-determination. The system in place is “incomplete and provisional”, like that examined by the Court in the Mathieu- Mohin and Clerfayt case cited above. 62. After a turbulent political and institutional history, the ten-year residence requirement laid down in the Institutional Act of 19 March 1999 has been instrumental in alleviating the bloody conflict. This local factor, resulting from problems that are more deep-seated and have more far-reaching consequences than the linguistic disputes at the origin of the Polacco and Garofalo and Mathieu- Mohin and Clerfayt cases cited above, has brought about a more peaceful political climate in New Caledonia and has enabled the territory to continue its political, economic and social development. 63. As the United Nations Human Rights Committee noted on 15 July 2002 (see above, paragraph 14.7 of the Views): “... the cut-off points set for the referendum of 1998 and referendums from 2014 onwards are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided. This being the case, these cut-off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who, over and above their ethnic origin or political affiliation, have helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory.” 64. The Court therefore considers that the history and status of New Caledonia are such that they may be said to constitute “local requirements” warranting the restrictions imposed on the applicant's right to vote. 65. In those circumstances, the very essence of the applicant's right to vote, as guaranteed by Article 3 of Protocol No. 1, has not been impaired. It follows that there has been no violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL No. 1 66. The applicant alleged in addition that, as a resident of New Caledonia, he had been the victim of discrimination contrary to Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 67. The Government did not address this complaint separately. 68. In view of its above conclusion that there has been no violation of Article 3 of Protocol No. 1 taken alone, the Court does not consider it necessary to consider the complaint under Article 14 of the Convention. | The Court held that there had been no violation of Article 3 of Protocol No. 1 to the Convention. It noted in particular that, according to the French Government, the reason for bringing in a residence condition was to ensure that the consultations would reflect the will of “interested” persons and that the result would not be altered by a massive vote cast by recent arrivals on the territory who had no solid links with it. Furthermore, the restriction on the right to vote was a direct and necessary consequence of establishing Caledonian citizenship. It was possible that the applicant had established links with New Caledonia, but the law could not take account of every individual case. Consequently, the residence condition was justified and pursued a legitimate aim. The history and status of New Caledonia – a transitional phase prior to the acquisition of full sovereignty and part of a process of self-determination – were such that they could be regarded as constituting “local requirements” warranting a restriction as important as the ten-year residence requirement, a condition which had also been instrumental in alleviating the bloody conflict. |
156 | Medically-assisted procreation | II. RELEVANT DOMESTIC LAW A. Health Care Reform Act (Law no. 95/2006) 34. The Act is divided into seventeen titles, covering a wide array of subjects specific to public health. Title VI contains provisions covering the procurement and transplant of organs, tissues and cells of human origin used for therapeutic purposes, the donors of organs, tissues and cells of human origin, the donation and transplant thereof and the financing of transplant activity. It transposes into national legislation Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards for the quality and safety of the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells. 35. Section 143 provides that the National Transplant Agency is responsible for “the coordination, supervision, approval and implementation of any provisions regarding transplant activities”. 36. The relevant subsections of section 148, which deals mainly with the procurement and transplant of tissues and cells from dead bodies, provide as follows: “(4) Procured tissue and cells of human origin can be used immediately for transplants or can be processed and deposited in tissue and cell banks, accredited with or approved by the National Transplant Agency. (5) Any transplant of tissue and cells of human origin may be processed only from banks accredited with or approved by the National Transplant Agency ...” According to subsection 9, the import or export of tissue and cells has to be specifically authorised by the National Transplant Agency in the manner referred to in Annex 7 (export of tissue and cells from dead bodies) and 9 (import), and must be carried out in accordance with the relevant customs legislation. B. Orders of the Minister of Public Health no. 1225 of 1 July 2008 and no. 1009 of 6 July 2010 37. The Orders listed a number of establishments, including the P. Clinic in Sibiu, which were authorised to function as tissue and cell banks and users, but neither the S. Clinic nor the IFM were included. C. National Transplant Agency Decision no. 5 of 3 June 2011 38. The decision reads as follows: Article 1 “From the date of the current decision the transfer of biological material on the territory of Romania between clinics that are legally authorised and accredited must be performed in strict accordance with the following specifications: - the procedure for freezing and preserving the embryos; - the freezing method used: vitrifying or slow freezing; - the freezing kit used and the name of the manufacturer; - if a freezing kit was prepared, the components and exact proportions used in the preparation process; - the stage of development of the embryos at the time of freezing; - documents allowing for the identification of the embryos and their position inside the transport container; - documents proving ownership of the embryos; - documents proving that keeping the embryos in the cell bank does not present a danger of contamination (in other words, the results of medical tests of the couple during in vitro fertilisation treatment); - the conditions of storage of the embryos (with appropriate evidence, for instance temperature charts). Article 2 “All private and public medical institutions shall implement the provisions of the current decision.” D. Romanian Criminal Code 39. Article 118, in force until 2014, read as follows: “The following property can be subjected to special confiscation: (a) the proceeds of carrying out an act forbidden by the criminal law; (b) property which was used, in any way, in the commission of a crime, if it belongs to the criminal or, if it belongs to someone else, where that person knew what it would be used for ...; (c) property produced, modified or adapted for the purpose of committing a crime, if it has been used for the commission of the crime and if it belongs to the criminal. If the property belongs to someone else, confiscation is ordered if the creation, modification or adaptation was made by the owner or by the criminal with the owner ’ s knowledge; ... (e) the proceeds of carrying out an act forbidden by the criminal law, if they are not returned to the victim or used to compensate the victim; (f) property which cannot be possessed by law. ...” E. Romanian Criminal Procedure Code 40. In its relevant parts concerning the procedure for the seizure of property during a criminal investigation, the code in force at the time of the events, in June 2009, reads as follows: Article 163 “Precautionary measures are those measures taken during a criminal trial by the prosecutor or by the court and consist of freezing assets, by ordering the seizure of movable and immovable property with a view to a subsequent special confiscation, remedying damage suffered as a result of the crime and to guaranteeing the enforcement of a fine. Precautionary measures taken with a view to remedying damage can be ordered in respect of property belonging to the accused or the person facing civil liability. Precautionary measures taken with a view to guaranteeing the enforcement of a fine can be ordered in respect only of property belonging to the accused. ...” Article 165 “(1) The authority that enforces the seizure ( sechestru ) must identify and value the property in question; it may, if need be, have recourse to experts. (2) Perishable goods, objects made of precious metal or jewels ... works of art ... and money which have been seized shall in all cases be taken away. ... (9) If there is a danger of alienation, the other movable items that have been seized will be sealed or also taken away, and a custodian can be appointed.” Article 166 “(1) The body that carries out the seizure draws up an official report on all the acts performed under Section 165, including a detailed description of the property seized and specifying its value ... Objections to the seizure by the parties and other interested persons are also mentioned. ...” Article 168 “(1) The defendant, the party with civil liability, as well as any other interested person, may complain about the precautionary measure and the means of its enforcement to the prosecutor or to the court at any stage in the proceedings. (2) An appeal can be lodged separately against the decision of a court. An appeal does not suspend execution. (3) If after completion of a criminal trial no complaint has been lodged against the enforcement of the precautionary measure, it may be challenged under the civil law.” Article 169 “(1) Where prosecutors or courts finds that property taken from a defendant, or from any other person who received them in his or her custody, is the property of the victim or has been wrongly taken away from him/her, they order the return of those items to the victim. Any other person who claims a right over the confiscated property can ask under Article 168 for enforcement of that right and the return of the property. (2) Confiscated property is only returned if it does not impede the search for the truth and the just settlement of the case, and it imposes on the person to whom it is returned an obligation to retain it until the issuing of a final decision.” THE LAW I. SCOPE OF THE APPLICATION 47. The applicants stated in their application that they reserved the right to raise a complaint under Article 2 of the Convention over an infringement of the right to life if their embryos became unviable owing to the acts of the authorities. 48. The Court notes that the applicants did not eventually complain about a breach of the right to life under Article 2 of the Convention, did not provide any information about the viability of their embryos and made no further submissions in that respect. 49. The Court will accordingly examine the application solely from the standpoint of the rights provided for by Article 8. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 50. The applicants complained that, as a whole, the authorities ’ behaviour had amounted to a disproportionate interference with their private and family life because for more than six years they had not been allowed to use their embryos for a new assisted reproduction procedure and had thus lost the possibility to have another child. They relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 51. The Government argued at the outset that the State could not be held responsible for acts committed by private persons, such as the S. Clinic, and relied in that regard on Borghi v. Italy (dec., no. 54767/00, ECHR 2002 ‑ V (extracts)) and Kiratli v. Turkey (dec., no. 6497/04, 2 September 2008). They submitted that the applicants and the S. Clinic alone had been responsible for the fate of the embryos and the fact that it had been impossible to use them. They further argued that, as had been pointed out in the interlocutory judgment of 29 November 2010, the applicants could have lodged a separate civil action against the doctors from the S. Clinic to seek damages under the tort liability provisions of the Civil Code, but had failed to do so. 52. The Court notes that the applicants ’ complaint concerned the refusal of the various institutions involved in the custody of the embryos after their seizure to return them at all, even though that had been allowed by the judicial authorities. The Government ’ s preliminary objections that the application is incompatible ratione personae and its objection as to the non-exhaustion of domestic remedies must therefore be dismissed. 53. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 54. The applicants complained that since 2010 they had been unable to use their embryos, deposited successively with the IFM and P.S. Hospital following their seizure by DIICOT, which had prevented them from attempting to have another child and had amounted to an interference with their right to respect for their private and family life. That interference had been neither lawful nor proportionate to the aim pursued. 55. They stressed that they had lawfully stored their embryos at the S. Clinic with a view to a future transfer to the mother. They had chosen that clinic because their doctor had been using its facilities. They had not been aware at the time, and could not have been aware, that the S. Clinic had not had the necessary authorisation, as later alleged. The S. Clinic had been well established. It had been operating for almost a decade, had been located near the Transplant Agency in the city centre, less than 800 metres from the main Government building. It had had a huge banner and clear signs outside, and had worked in partnership with other well-established and well-known authorised medical facilities and doctors. Moreover, the S. Clinic had obtained the required authorisation to store genetic material. 56. The authorities ’ interference with their private and family life had not been provided for by law. First of all, DIICOT ’ s decision to deposit the confiscated embryos with the IFM, which had not possessed the required authorisation to store genetic material, had been unlawful. In addition, the Transplant Agency ’ s refusal to implement the prosecutor ’ s decision ordering the return of the embryos had had no legal basis, nor had the Transplant Agency ’ s refusal to obey the decision of the Supreme Court of Justice allowing the applicants to arrange the transfer of the embryos to a clinic of their choice by setting conditions that had been impossible to fulfil. 57. The applicants also complained that DIICOT ’ s decision to transfer their embryos from the IFM to P.S. Hospital had been made without informing them beforehand or consulting them. 58. Moreover, the requirements laid down by the new legal custodian, P.S. Hospital, for allowing the applicants to retrieve their embryos had been impossible to meet in practice and had in any event been unlawful. 59. The applicants also submitted that they had never received an official reply from DIICOT to their request to be appointed custodians of their own embryos. They could easily be transferred to them without harming other embryos as they were stored in separate vials. 60. The applicants submitted that all the above acts had shown a lack of consistency in respect both of domestic legislation and its implementation by the relevant State authorities. 61. As a result of those acts the applicants had been put in a situation where they could neither remove their embryos nor use them. The situation also had to be looked at in the light of the fact that Mrs Nedescu ’ s health did not allow her to undergo new stimulation treatment in order to obtain new embryos. If their embryos became unviable or were damaged, their chances of having another child would be irretrievably lost. Overall, the matters complained of constituted an interference which was disproportionate to the aim pursued. 62. Lastly, the applicants stressed that their case was of general importance since there were hundreds of other families in a similar situation as they had deposited their embryos at the S. Clinic and were unable to use them on account of the authorities ’ behaviour. (b) The Government 63. The Government referred at the outset to Knecht v. Romania (no. 10048/10, 2 October 2012), which had concerned a similar complaint. The case had been lodged by Ms Knecht, whose embryos had been stored in the same container as those of the applicants. The Court had found that although there had been an interference with the applicant ’ s right to respect for their private life that interference had been in compliance with the requirements of paragraph 2 of Article 8. The Government argued that the same reasoning should be applied in the present case. 64. The measures taken by the authorities had pursued the aim of preventing crime and protecting the health and the rights and freedoms of others. In the present case, the Romanian authorities had not exceeded the wide margin of appreciation enjoyed by the State in the matter of assisted reproduction. First of all, the prosecution authorities ’ seizure of the genetic material found at the S. Clinic had been justified and devoid of any arbitrariness. The applicants had been able to ask for the return of their embryos from the IFM. In addition, its refusal to return the embryos without the consent of the Transplant Agency had been in compliance with domestic regulations. Secondly, the High Court of Cassation and Justice had on 20 December 2011 allowed the transfer of the embryos to P.S. Hospital, which had been authorised to function as a genetic material bank. The conditions set by P.S. Hospital for allowing the applicants to withdraw their embryos did not appear to be unreasonable, bearing in mind that the applicants could only use their embryos in a way which did not breach domestic legislation or the administrative regulations of the competent authorities. In addition, the applicants had failed to substantiate their statement that Mrs Nedescu ’ s health had prevented her from undergoing another IVF procedure in P.S. Hospital. 2. The Court ’ s assessment (a) Whether there was an interference with the applicants ’ rights under Article 8 65. The Court is called to determine in the first place whether the facts of the present case fall within the scope of the applicants ’ rights under Article 8 of the Convention. (i) The principles established in the Court ’ s case-law 66. Court recalls the principles laid-down in its case-law on Article 8 of the Convention, particularly as they were restated in its recent judgment of Paradiso and Campanelli v. Italy [GC] (no. 25358/12, §§ 159-160), ECHR 2017): “159. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which does not lend itself to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91) and, to a certain degree, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B). It can sometimes embrace aspects of an individual ’ s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). The concept of private life also encompasses the right to “personal development” or the right to self-determination (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III), and the right to respect for the decisions both to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-I, and A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010). 160. In its judgment in the case of Dickson v. the United Kingdom ([GC], no. 44362/04, § 66, ECHR 2007-V), concerning the refusal to grant the applicants – a prisoner and his wife – artificial insemination facilities, the Court concluded that Article 8 was applicable, in that the refusal of artificial insemination facilities at issue concerned their private and family lives, specifying that those notions incorporate the right to respect for their decision to become genetic parents. In the case of S.H. and Others v. Austria ([GC], no. 57813/00, § 82, ECHR 2011) – which concerned couples wishing to have a child using gametes from donors – the Court held that the right of a couple to conceive a child and to make use of medically assisted reproduction for that purpose is also protected by Article 8, as such a choice is an expression of private and family life.” 67. In that case the Court further held that a genuine intention on behalf of the applicants to become parents, which implied that a major part of their lives was focused on realising their plan to become parents, in order to love and bring up a child, was relevant both for their right to respect for their decision to become parents, and for their personal development through the role of parents that they wished to assume vis-à-vis the child; it concluded that the facts of the case fell within the scope of the applicants ’ private life ( Paradiso and Campanelli, cited above, §§ 163-164). 68. The Court had also held that an applicant ’ s ability to exercise a conscious and considered choice regarding the fate of her embryos concerned an intimate aspect of her personal life and triggered the application of Article 8 of the Convention from the standpoint of the right to respect for private life ( Parrillo v. Italy [GC], no. 46470/11, § 159, ECHR 2015. 69. Finally, in the case of Vo v. France [GC] (no. 53924/00, ECHR 2004 ‑ VIII) the Court held as follows, in respect of the nature and degree of protection due to a human embryo: “84. At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or foetus (see paragraphs 39-40 above), although they are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation. At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person [...] require protection in the name of human dignity, without making it a “person” with the “right to life” for the purposes of Article 2. ...” (ii) Application of the above-mentioned principles to the instant case 70. In the present case the Court considers that the joint parental project of the applicants, who wish to have a child by making use of assisted procreation using their own embryos is an intimate aspect of their private life (see also Knecht, cited above, § 54). 71. Unlike the applicant in Knecht, the Court notes that the complaint in this case was neither about the seizure of embryos nor the refusal of a court to return embryos to a clinic of the applicants ’ choice as the judicial authorities had allowed such a return (compare and contrast Knecht, cited above, §§ 57-62). 72. The applicants ’ complaint concerned the refusal by the various administrative authorities to actually carry out the return of the remaining embryos that had been created at the S. Clinic, despite orders from the judicial authorities, which in turn prevented them from the possibility of having another child (see paragraphs 8 and 50 above). 73. The Court notes in particular that following the seizure of their embryos and their being deposited with the IFM, the applicants attempted on numerous occasions to recover them, but failed each time. On 21 July 2010 the IFM, where the embryos had been deposited first of all, refused to allow the applicants to retrieve them (see paragraph 14 above). On 13 December 2010 the Transplant Agency notified the applicants of its refusal to allow recovery of the embryos (paragraph 21 above). On 22 March 2011 the Bucharest Court of Appeal refused to allow the recovery of the embryos by way of their transfer to a clinic of the applicants ’ choice (paragraph 23 above). Finally, P.S. Hospital, the new custodian appointed on 26 March 2011, refused to allow the retrieval ordered by DIICOT, which would have implemented the High Court of Cassation ’ s decision of 20 December 2011 (see paragraph 26 above), as it on each occasion set different conditions for such a retrieval and for a transfer to Mrs Nedescu. On 27 September 2012 the condition set by the hospital was the presence of a representative from the Transplant Agency and of the embryologist from S. Clinic; on 1 November 2012 the hospital said it required an authorisation document from the Transplant Agency and the presence of a certified embryologist and a special container; on 12 November 2012 it told the applicants that it refused to transfer the embryos to Mrs Nedescu; and on 7 January 2013 it informed the Government that the embryos could only be retrieved if the Transplant Agency gave its prior approval and it also required the presence of an embryologist from the S. Clinic and a DIICOT representative (see paragraphs 26 - 29 above). 74. A request by the applicants to be appointed custodians of their own embryos was likewise rejected on 18 April 2013 (see paragraph 32 above). 75. In view of the above considerations, the Court finds that preventing the applicants from retrieving their embryos as ordered by the High Court of Cassation constituted an interference with their right to respect for their private life. (b) Compliance with Article 8 § 2 76. Such an interference will be contrary to Article 8 unless it is “prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society” (see, among many other authorities, Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, § 34; Enea v. Italy [GC], no. 74912/01, § 140, ECHR 2009; and Roman Zakharov v. Russia [GC], no. 47143/06, § 227, ECHR 2015). 77. The Court reiterates that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000 ‑ V S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008). The foreseeability requirement also means giving individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts)). 78. The Court must therefore determine whether the various institutions ’ actions or omissions that interfered with the applicants ’ private life were in line with the lawfulness requirement of Article 8 § 2, as set out above. 79. In that regard, it notes at the outset that the Government have not relied on any specific legal provisions in support of their submission that the interference was provided for by law. The Court will therefore assess the lawfulness of the interference having regard to the information at its disposal, notably the reasoning of the domestic courts and other institutions involved. 80. The return of the embryos or their transfer to a clinic of the applicants ’ choice was allowed in straightforward fashion by the judicial authorities: on 30 March 2010 by DIICOT, which had taken the seizure measure in the first place (see paragraph 13 above), and on 20 December 2011 by the High Court of Cassation and Justice (see paragraph 26 above). While the seizure of the embryos, which is not a grievance in the current case, appears to have been based on Article 163 of the Criminal Procedure Code because of the criminal proceedings against the S. Clinic (see paragraph 40 above), neither the subsequent deposit of the embryos with the IFM within the framework of the criminal proceedings nor the conditions for their retrieval from either the IFM or the new custodian appear to have had a clear basis in domestic law. 81. The Court takes note of the provisions which regulate the storage and use of genetic material (see paragraphs 34 to 36 and 38 above), which were relied on directly or indirectly by some of the authorities and institutions when they refused to implement the judicial authorities ’ decisions to put an end to the seizure measure and order the return of the embryos, and also when they set additional conditions for implementing those decisions (see paragraphs 21, 23 and 31 ). 82. It further notes that despite those provisions, the various institutions involved disagreed on the conditions under which the DIICOT order to return the embryos could be carried out. One disagreement was on the need for prior approval by the Transplant Authority: the IFM, the Court of Appeal and P.S. Hospital considered that the Transplant Agency ’ s approval was required (see paragraphs 14, 23, 29 and 31 above), while DIICOT did not. The High Court, in turn, found that the requirement for such approval was unlawful (see paragraphs 13, 26 and 27 above). Moreover, the new custodian, P.S. Hospital, repeatedly argued that DIICOT ’ s depositing of the embryos with the IFM had been unlawful as the IFM had not been authorised to function as a genetic material bank. It also considered that moving the embryos from the IFM to the Hospital had been carried out in violation of the lawful requirements for such a transfer. 83. Lastly, the Court cannot ignore the fact that P.S. Hospital considered that the flaws in the legal procedures related to the depositing, moving and handling of the embryos had been such that it seemed to be impossible to identify with certainty which embryos belonged to the applicants. It also stated that it could only store the embryos and could not perform any other operations with them (see paragraph 31 above). 84. In the light of the above, the Court finds that the manner in which the judicial and administrative authorities involved implemented and interpreted the relevant legal provisions concerning the seizure, the storage following such a seizure and the return of the applicants ’ embryos was incoherent and thus lacked the required foreseeability. 85. In conclusion, the Court finds that the interference with the applicants ’ right to respect for their private life was not provided for by law within the meaning of Article 8 § 2 of the Convention. 86. That being so, the Court is not required to determine whether the interference pursued a legitimate aim and, if so, whether it was proportionate to the aim pursued. 87. There has accordingly been a violation of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 88. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 89. The applicants claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage. They submitted that as a result of the authorities ’ interference with their right to respect for their private life they had lost the chance to have a second child and had thus suffered distress, humiliation and frustration, which had been exacerbated by the unlawful nature of the interference. 90. The Government contested the claim. 91. The Court considers that the applicants must have sustained non ‑ pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found (see paragraph 84 above), and making its assessment on an equitable basis, the Court awards the applicants jointly EUR 7,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 92. The applicants also claimed EUR 5,580 for legal costs and expenses incurred both at the domestic level and during the proceedings before the Court, which they wished to be paid directly to their representative. A contract of legal assistance and a detailed document were submitted indicating a fee of EUR 80 per hour and the precise dates and the overall number of hours worked in preparing the case. 93. The applicants ’ representative argued that the number of hours spent on the case was not excessive and was justified by its complexity and detailed nature. The time was also justified by repeated attempts to obtain information on developments at the domestic level, on the background of a lack of coherence in the authorities ’ reactions. As to the hourly fees, the representative argued that they were well below the average normally charged by law firms in Bucharest, that is EUR 200 per hour. 94. The Government objected and argued that the amount claimed was excessive. They also pointed out that the applicants had already been granted RON 4,000 (some EUR 880), covering costs for the proceedings before the domestic courts (see paragraph 26 above). 95. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no. 41088/05, § 176, 11 July 2006). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part. 96. In the present case, the Court notes that the applicants have set out their claims in an itemised and precise manner. Regard being had to the documents in its possession and the above criteria, which it deems to have been satisfied in the present case, the Court considers it reasonable to award EUR 4,700 for costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicants, to be paid to the applicants ’ representative. C. Default interest 97. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In this case the Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding in particular that preventing the applicants from retrieving their embryos as ordered by the High Court of Cassation had constituted an interference with their right to respect for their private life which was not provided for by law. |
764 | Right to life and right to respect for private life | THE LAW THE GOVERNMENT ’ S PRELIMINARY OBJECTION A. The Government ’ s submissions to the Grand Chamber 19. In their memorial to the Court of 7 January 2014, the Government stated that when preparing their memorial they had taken the precaution of enquiring about the applicant ’ s situation at the municipality where she lived and had found out that she had died on 10 November 2011. Thus, by the time the Chamber had adopted its judgment in this case, she had been dead for approximately one and a half years. Relying on the Court ’ s decision in the case of Predescu v. Romania ( no. 21447/03, § 25, 2 December 2008 ), they requested the Court to declare the application inadmissible on the ground of abuse of the right of petition, in accordance with Article 35 § § 3 (a) and 4 of the Convention. 20. The Government submitted that the applicant’s counsel had not only failed to inform the Court of the applicant ’ s death – which he should have done at the latest when the Court ’ s Registry provided him with the statement of facts, assuming her to be alive – but had also misled the Court in his submissions by giving the impression that the applicant was still alive. 21. In the Government ’ s view, the conduct of the applicant ’ s counsel had been such as to mislead the Court as regards an essential aspect for its examination of the application. B. Counsel for the applicant ’ s submissions to the Grand Chamber 22. The applicant’s counsel responded that he had not had any personal contact with his client since January 2010 and had only become aware of her death on 9 January 2014, when he had received a copy of the Government ’ s memorial of 7 January 2014. 23. Counsel explained that the applicant had expressed her wish that counsel should send any further correspondence to Mr F., a retired pastor who also voluntarily worked for the assisted - suicide association EXIT. The reason for this arrangement was, inter alia, that receiving letters from her counsel directly had caused her stress and that she therefore needed assistance from a person of trust. Thus, after her appeal to the Federal Supreme Court in January 2010, it had been agreed that Mr F. would bring any communications to her personally and explain them to her. Counsel submitted that he had complied with those instructions. 24. Upon receipt of the Government ’ s submissions on 9 January 2014, counsel had immediately contacted Mr F., who had explained to him that he had refrained from notifying him of the applicant ’ s death at the applicant ’ s express request because she feared that the ongoing proceedings would otherwise be discontinued. In the summer of 2011, when it had become clear that the applicant would end her life, she had informed Mr F. that counsel had told her that if she died during the proceedings the case would be at an end, and that she did not want this to happen as she wanted “to open the way for other people in her situation”. Mr F. had taken the view that a spiritual adviser ’ s professional duty did not permit disclosure against the applicant ’ s express wishes. Counsel for the applicant further stated that he found it extremely regrettable that Mr F. had not informed him immediately of the applicant ’ s death, as counsel would have duly informed the Court and would have made an application for the proceedings to be continued nevertheless. 25. Relying on the Court ’ s case-law in previous cases where an applicant had died or had expressed the wish to withdraw his or her complaint during the proceedings before the Commission or the Court (counsel referred to the Court ’ s judgments in Scherer v. Switzerland, 25 March 1994, Series A no. 287, and Tyrer v. the United Kingdom, 25 April 1978, § 21, Series A no. 26 ), he argued that upon lodging an application with the Convention institutions the latter became master of the proceedings. It was thus for the Court to decide whether the proceedings in a given case should be continued. The decisive factor in that regard was whether, in the Court ’ s view, the case raised general questions of public interest that required further examination. 26. In the instant case, counsel for the applicant invited the Court to continue the proceedings on the ground that the case raised substantive questions regarding compliance with the Convention which required further examination in the public interest. “ Euthanasia” was a contentious and much - debated issue in many European countries. Cases of this nature were generally brought by persons who were elderly and/or ill. If proceedings were to be systematically abandoned when such a person died, the questions raised by such cases could never be decided by the Court. C. The Court ’ s assessment 27. Article 35 § 3 (a) of the Convention provides: “The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; ... ” 28. The Court reiterates that under this provision an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Akdivar and Others v. Turkey, 16 September 1996, § § 53-54, Reports of Judgments and Decisions 1996 ‑ IV; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000 ‑ X; Rehak v. the Czech Republic (dec.), no. 67208/01, 18 May 2 004; Popov v. Moldova (no. 1), no. 74153/01, § 48, 18 January 2005; Kerechasvili v. Georgia (dec.), no. 5667/02, ECHR 2006 ‑ V; Miroļubovs and Others v. Latvia, no. 798/05, § 63, 15 September 2009; and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012 ). The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Hüttner v. Germany ( dec. ), no. 23130 /04, 1 9 June 2006; Predescu, cited above, §§ 25 ‑ 26; and Kowal v. Poland ( dec. ), no. 2912/11, 18 September 2012). The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6 ) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts ( see Centro Europa 7 S.r.l. and Di Stefano, cited above, and Miroļubovs and Others, cited above). However, even in such cases, the applicant ’ s intention to mislead the Court must always be established with sufficient certainty ( see Al-Nashif v. Bulgaria, no. 50963/99, § 8 9, 20 June 2002; Melnik v. Ukraine, no. 72286/01, §§ 58-60, 28 March 2006; Nold v. Germany, no. 27250/02, § 87, 29 June 2006; and Centro Europa 7 S.r.l. and Di Stefano, cited above). 29. Turning to the circumstances of the instant case, the Court notes at the outset that in her application lodged with the Court on 10 November 2010 the applicant complained, relying on Article 8 of the Convention, that the Swiss authorities, by depriving her of the possibility of obtaining a lethal dose of sodium pentobarbital, had violated her right to decide by what means and at what point her life would end. It further observes that on 5 January 2012 notice of her application was given to the respondent Government and that on 14 May 2013 the Chamber delivered a judgment in which it held (by four votes to three) that there had been a violation of Article 8 of the Convention, a finding which was based on the assumption that the applicant was still alive (see paragraphs 65 - 67 of the Chamber judgment). 30. However, it was later revealed that in the meantime, on 24 October 2011, the applicant had obtained a medical prescription for a lethal dose of sodium pentobarbital and that on 10 November 2011 she had ended her life by imbibing the prescribed substance. 31. This development was not brought to the Court ’ s attention by the applicant or her counsel but by the Government, in their memorial of 7 January 2014, after the case had been referred to the Grand Chamber in accordance with Article 43 of the Convention. When preparing their memorial, the Government had enquired about the applicant ’ s situation and had found out about the fact and the circumstances of her death. 32. The Court has taken note of the explanation submitted in reply by counsel for the applicant that he had been unaware of his client ’ s death because he had only had contact with her via an intermediary, Mr F., who – at her request – had purposely refrained from notifying counsel of her death. According to Mr F., this was because of her fear that the disclosure of such a fact might prompt the Court to discontinue the proceedings in her case. As her spiritual adviser he had considered himself bound by a professional duty of confidentiality preventing him from disclosing that information against her wishes. 33. However, in the Court ’ s view, and bearing in mind the particular nature of the present case, the fact that counsel for the applicant had no direct contact with his client but agreed to communicate with her indirectly through an intermediary gives rise to a number of concerns regarding his role as a legal representative in the proceedings before it. In addition to the duties of an applicant to cooperate with the Court (see Rule 44A of the Rules of Court; see also Rule 44C, “Failure to participate effectively”, including the possibility of drawing inferences from the failure of a party “to divulge relevant information of its own motion” ) and to keep it informed of all circumstances relevant to his or her application (see Rule 47 § 7, former Rule 47 § 6), a representative bears a particular responsibility not to make misleading submissions (see Rule 44D). 34. It transpires from her counsel ’ s explanation that the applicant had not only failed to inform him, and by implication the Court, of the fact that she had obtained the required medical prescription, but had also taken special precautions to prevent information about her death from being disclosed to counsel and eventually to the Court in order to stop the latter discontinuing the proceedings in her case. 35. Against this background, the Grand Chamber considers that the fact and the circumstances of the applicant ’ s death did indeed concern the very core of the matter underlying her complaint under the Convention. It is also conceivable that had these facts been known to the Chamber they might have had a decisive influence on its judgment of 14 May 2013 concluding that there had been a violation of Article 8 of the Convention (see, mutatis mutandis, Rule 80 of the Rules of Court; Pardo v. France (revision – admissibility), 10 July 1996, §§ 21-22, Reports 1996 ‑ III; Pardo v. France (revision – merits), 29 April 1997, § 23, Reports 1997 ‑ III; and Gustafsson v. Sweden (revision – merits), 30 July 1998, § 27, Reports 1998 ‑ V ). However, there is no need for the Grand Chamber to speculate on this since in any event, in accordance with Article 44 § 2 of the Convention, the Chamber ’ s judgment of 14 May 201 3 has not become final. 36. According to Mr F., the applicant ’ s motive for withholding the relevant information had been that, regardless of the fact that the ongoing grievance arising from her own personal situation had ceased, the proceedings in her case should continue for the benefit of other people who were in a similar situation. While such a motive may be understandable from the applicant ’ s perspective in the exceptional situation in which she found herself, the Court finds it sufficiently established that by deliberately omitting to disclose that information to her counsel the applicant intended to mislead the Court on a matter concerning the very core of her complaint under the Convention. 37. Accordingly, the Court upholds the Government ’ s preliminary objection that the applicant ’ s conduct constituted an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention. | In its Chamber judgment in the case on 14 May 2013, the Court held, by a majority, that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found in particular that Swiss law was not clear enough as to when assisted suicide was permitted. The case was subsequently referred to the Grand Chamber at the request of the Swiss Government. In January 2014 the Swiss Government informed the Court that it had learned that the applicant had died in November 2011. In its Grand Chamber judgment of 30 September 2014 the Court has, by a majority, declared the application inadmissible. It came to the conclusion that the applicant had intended to mislead the Court on a matter concerning the very core of her complaint. In particular, she had taken special precautions to prevent information about her death from being disclosed to her counsel, and thus to the Court, in order to prevent the latter from discontinuing the proceedings in her case. The Court therefore found that her conduct had constituted an abuse of the right of individual application (Article 35 §§ 3 (a) and 4 of the Convention). As a result of this judgment, the findings of the Chamber judgment of 14 May 2013, which had not become final, are no longer legally valid. |
783 | Medical negligence and liability of health professionals | II. RELEVANT DOMESTIC LAW 53. The relevant legal provisions and the domestic case-law and practice concerning the delivery of forensic reports, as well as the liability of medical staff, are described in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010). 54. Law no. 95/2006 introduced the notion of medical negligence as a basis for the establishment of liability of medical staff and created an obligation on them to obtain insurance for any civil liability resulting from their work (see Eugenia Lazăr, cited above, § 54). The civil responsibility for the damage caused is personal and proportionate to the degree of responsibility (Article 643 ). The Regulations adopted on 14 March 2007 by the Ministry of Health (“the Regulations”) provided that the liability must be established by a court (Article 3 § 2). Doctors have a legal obligation to insure themselves against claims of malpractice (Article 656). Under Article 662, damages are paid to the patient if the parties reach an agreement or, in the absence of such an agreement, if the doctor ’ s liability is established by a court. 55. A series of laws concerning the public health service and patients ’ rights establishes an obligation to inform a patient about any surgical procedure proposed, the risks involved in the procedure, alternative treatment, and diagnosis and prognosis: Laws nos. 3/1978 and 306/2004 on public health insurance; Law no. 74/1995 on the establishment and functioning of the College of Doctors; Law no. 46/2003 on patients ’ rights (“Law no. 46/2003”); and Law no. 95/2006 on reform of the medical sector (“Law no. 95/2006”). 56. Under Article 37 of Law no. 46/2003, a breach of a patient ’ s right to be informed and consulted may entail disciplinary or criminal action against the medical practitioner, depending on the applicable law. The Law also regulates the patient ’ s right to seek a second medical opinion ( section 11). 57. The relevant provisions of the CCP in force at the time of the pertinent facts read as follows: Article 15 “A person who has suffered civil damage may join the criminal proceedings ... He or she may do so either during the criminal investigation ... or before the court ...” Article 19 “(1) If a victim has not joined criminal proceedings as a civil party, he or she can initiate separate proceedings before the civil courts for damages arising from the offence. (2) Civil proceedings shall be stayed pending a final judgment of the criminal courts. (3) A victim who has joined criminal proceedings as a civil party may also initiate separate civil proceedings if the criminal proceedings are stayed. If the criminal proceedings are reopened the civil proceedings opened before the civil courts shall be stayed. (4) A victim who has initiated civil proceedings before a civil court may abandon these proceedings and lodge a request with the investigating authorities or the trial court if criminal proceedings have subsequently been opened...The civil proceedings may not be abandoned if the civil court has delivered a judgment, even if the judgment is not a final one.” Article 22 “The findings contained in the final judgment of a criminal court concerning the issue of whether the act in question was committed and the identification of the perpetrator and establishment of his or her guilt are binding on a civil court when it examines the civil consequences of the criminal act.” Article 346 “(1) In the event of a conviction or an acquittal, or the termination of a criminal trial, the court shall deliver a judgment in which it also decides on the civil action. (2) Where acquittal has been pronounced ... because one of the constitutive elements of an unlawful act is missing, the court may award pecuniary and non-pecuniary damages in accordance with civil law.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 58. Relying on Article 6 § 1 of the Convention, the applicants complained that the investigation into the circumstances of the death of their son had been ineffective. 59. The Court is the master of the characterisation to be given in law to the facts and can decide to examine complaints submitted to it under another Article than that quoted by the applicant (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). It will therefore examine the complaint under Article 2 of the Convention ( see Istrățoiu v. Romania (dec.), no. 56556/10, § 56, 27 January 2015 ), which reads as follows: “1. Everyone ’ s right to life shall be protected by law ...” A. Admissibility 60. The Government raised a preliminary objection of non-exhaustion of domestic remedies. They argued that the applicants should have continued the separate general action in tort against the doctors or other persons they considered responsible for the death of their son after their civil claim joined to the criminal proceedings had been dismissed by the Brăila County Court on 22 December 2011. They pointed out that the applicants had given up their separate civil action on 6 March 2013. 61. The Government supported their arguments that proceedings under the general law of tort would have been an effective remedy in the circumstances of the case by referring to the Court ’ s findings in the cases of Codarcea v. Romania ( no. 31675/04, §§ 38-48, 2 June 2009 ), Stihi ‑ Boos v. Romania (dec.) ( no. 7823/06, §§ 42-43, 11 October 2011 ) and Floarea Pop v. Romania ( no. 63101/00, § 47, 6 April 2010 ). 62. The applicants contested the Government ’ s position. They argued that immediately after their son ’ s death they had lodged disciplinary and criminal complaints, to which they had attached a civil claim. After a few months, as they had considered that the criminal investigation had been too slow and they had become afraid that their civil action would have become time-barred, they had lodged a separate action in tort. However, their compensation in the separate civil action depended on the findings of the criminal courts. Moreover, the criminal courts dismissed their civil complaint lodged together with the criminal complaint. Therefore, as the criminal courts had found no negligence in the pre - and post- operative treatment of their son, they had given up the separate civil action. 63. The Court considers that the Government ’ s objection is closely linked to the substance of the applicants ’ complaints. It therefore joins the objection to the merits of the case. 64. It also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 65. The applicants complained that the criminal investigation into the death of their son had been ineffective and had exceeded a reasonable time. They claimed in particular that the domestic prosecuting authorities and courts had not exercised their active role nor examined whether P.V.I., the nurse in charge of the post- operative monitoring of the child, and Dr C.B., who performed the operation, had carried out their professional duties. 66. The applicants also contended that they did not agree with the Government ’ s submissions that the findings of the forensic report stating that the cause of death had been the deflation of the catheter ’ s balloon could have been rebutted by statements of witnesses and defendants. Moreover, they pointed out that the investigation performed by the prosecuting authorities had been ineffective as despite the findings of the National College of Doctors and of the forensic experts they had decided to discontinue the criminal proceedings against Dr P.A. and had not examined at all the liability of Dr C.B. and P.V.I. 67. The applicants also reiterated that they had not been informed about the nature and the risks of the procedure and accordingly they had not given their informed consent in writing as requested by law, neither for surgery nor for the general anaesthesia. 68. The Government contended that the criminal investigation had been comprehensive and thorough, in compliance with the requirements of Article 2 of the Convention. The measures taken by the authorities had been appropriate and sufficient to comply with the requirements of Article 2 of the Convention. 69. The Government considered that the present case differed significantly from Eugenia Lazăr ( cited above ). They pointed out that while in the latter case the superior commission of the Mina Minovici Institute had not been able to produce a new reasoned report to clarify contradictions between different forensic reports, in the present case the only contradictions that could be seen were between medical forensic documents on the one hand, and the documents drafted in the disciplinary proceedings and the witnesses ’ statements on the other. 70. According to the Government, the domestic courts examined all the evidence in the file and could not find beyond any reasonable doubt that Dr P.A. had been negligent in performing his duties. Moreover, Dr P.A. ’ s departures from established procedures were identified and sanctioned by the disciplinary bodies. 71. For the reasons above, they concluded that the State ’ s responsibility could not be engaged under Article 2 of the Convention. 2. The Court ’ s assessment (a) General principles 72. The Court reiterates that the positive obligations imposed on the State by Article 2 of the Convention imply an obligation to put in place an efficient and independent judicial system by which the cause of death of an individual under the responsibility of health -care professionals can be established, whether they are working in the public sector or employed in private organisations, and, if necessary, to ensure accountability for their actions (see, in particular, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I). 73. Although it cannot be inferred from the foregoing that Article 2 may entail the right to have third parties prosecuted or sentenced for a criminal offence (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 238, ECHR 2016), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged. However, the obligations of the State under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice within a time-span such that the courts can complete their examination of the merits of each individual case (see Calvelli and Ciglio, cited above §§ 51-53; Vo v. France [GC], no. 53924/00, §§ 89-90, ECHR 2004 ‑ VIII, and Byrzykowski v. Poland, no. 11562/05, § 105, 27 June 2006 ). 74. The requirements of an effective investigation also include, among other things, the need for “thoroughness”, which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident (see Elena Cojocaru v. Romania, no. 74114/12, § 113, 22 March 2016 ). (b) Application of the general principles to the present case 75. Turning to the facts of the present case the Court notes that following the operation performed by Dr C.B. under general anaesthetic administered by Dr P.A., the applicants ’ son lost his life in hospital. 76. A criminal investigation was opened. The investigating authorities ordered an autopsy and took statements from the two doctors and the applicants. This preliminary investigation ended in decisions by the prosecuting authorities on 30 September and 10 November 2008 not to commence criminal proceedings against Dr P.A. as no medical error by him had been found (see paragraph 34 above). The prosecutors did not assess the liability of Dr C.B. concerning his medical conduct. 77. On 25 February 2009 these prosecuting authorities ’ decisions were quashed by the Brăila District Court and the opening of criminal proceedings against Dr P.A. was ordered. The District Court observed that the investigating authorities had ignored the conclusions of the committee of the National College of Doctors, which had noted irregularities in the post ‑ operative monitoring of the child (see paragraph 35 above). 78. The Court, like the domestic investigation authorities, notes significant discrepancies among the different forensic medical reports drafted during the criminal prosecution. The result was that the investigating authorities considered that a new forensic report was necessary for the determination of the cause of death (see paragraphs 28 and 31 above). 79. The applicants and Dr P.A. forwarded questions to be answered by forensic experts. These questions were relevant and in answering them the forensic authorities could have helped shed light on the unfortunate events that led to the applicants ’ loss. 80. However, their requests to the Mina Minovici National Forensic Institute for a forensic report were rejected as the applicable law did not allow for a new forensic report to be commissioned, as the Forensic Institute had already given its opinion on the case. 81. The Court has already identified shortcomings in the Romanian legal system in this respect. In the Eugenia Lazăr case it considered in particular that the very existence in domestic law of provisions authorising the forensic medical institutes to ignore requests by the judicial authorities was not compatible with the State ’ s primary duty to secure the right to life by putting in place an appropriate legal and administrative framework to establish the cause of death of an individual under the responsibility of health-care professionals (see Eugenia Lazăr, cited above, § 80 ). 82. For the Court, only a detailed and scientifically substantiated report containing reasons for the contradictions between the lower institutes ’ opinions and answers to the questions put by the prosecuting authorities and the applicants would have been capable of inspiring public confidence in the administration of justice and assisting the judicial authorities in discharging their duties. 83. Moreover, the Court notes that the investigating authorities never elucidated whether P.V.I. (the attending nurse) had diligently carried out her duties during the post-operative monitoring of the child. In this respect the Court points out that according to the forensic reports one of the main hypotheses for the presence of blood in the child ’ s lungs was the deflation of the balloon of the catheter (whose role had been to prevent the ingress of blood into the child ’ s airways) while under the surveillance of either Dr P.A. or P.V.I. After P.V.I. had been heard as a witness immediately following the child ’ s death, she resigned from the hospital and left the country for Italy (see paragraph 37 above). The prosecuting authorities also dismissed the applicants ’ requests to extend the criminal proceedings and to investigate whether she could be held accountable for their son ’ s death (see paragraph 48 above). The Court notes that although her testimony was quite important in determining the cause of the child ’ s death no special measures had been taken by the authorities to identify her domicile in Italy to have her return to testify. 84. The applicants also complained about the alleged failure to obtain their informed written consent for the procedure. The Court has emphasised that it is important for individuals facing risks to their health to have access to information enabling them to assess those risks. It has held in particular that the Contracting States are bound to adopt the necessary regulatory measures to ensure that doctors consider the foreseeable impact of a planned medical procedure on their patients ’ physical integrity and to inform patients of these consequences beforehand in such a way that the latter are able to give informed consent. As a corollary to this, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, and if, as in the instant case, those doctors work in a public hospital, the State Party concerned may be held directly liable under Article 8 for this failure to provide information (see Trocellier v. France (dec.), no 75725/01, § 4, ECHR 2006-XIV; Codarcea, cited above, § 105; and E.M. v. Romania (dec.), no. 20192/07, § 54, 3 June 2014 ). 85. The Court notes that domestic legislation expressly provided for the patient ’ s right to receive information sufficient to allow that patient to give, with a corollary obligation on the doctor to obtain, informed consent prior to a procedure involving any risk (see paragraphs 5 5-56 above). 86. In the Court ’ s opinion the informed consent of the parents in the present case was even more relevant given that the doctors involved in the applicants ’ son ’ s surgery could and should have been aware that the child suffered from serious congenital medical conditions which suggested that post-operative complications should have been envisaged. Therefore, these conditions should have imposed a careful examination of all available options. 87. However, although the disciplinary committees concurred that both the surgeon and the anaesthetist had failed, prior to the procedure, to obtain the applicants ’ informed written consent for the procedure (see paragraphs 16 and 21 above), the domestic courts found no medical negligence in the way the doctors had performed their professional duties. 88. The Court is not in a position to contradict the domestic courts ’ findings concerning the absence of criminal responsibility in respect of the doctors in the case. Still, it considers that for the assessment of the case it was relevant to examine whether the operation was carried out according to the rules of the medical profession and the safeguards created by the domestic system itself (see Csoma v. Romania, no. 8759/05, § 57, 15 January 2013). 89. Moreover, the Court observes that the death of the applicants ’ son occurred in November 2005 and that the final decision in the case was taken in May 2012, six years and a half later. However, the file does not suggest that such lengthy proceedings were justified by the circumstances of the case. 90. The Court reiterates in this respect that a requirement of promptness and reasonable expedition is implicit in the investigation of cases concerning death in a hospital setting. It had already held that the knowledge of facts and possible errors committed in the course of medical care should be established promptly in order to be disseminated to the medical staff of the institution concerned so as to prevent the repetition of similar errors and thereby contribute to the safety of users of all health services (see Byrzykowski, cited above, § 117). 91. Against this background, the Court recalls that after the death of their son, the applicants did not remain passive and asked that the real cause of death be properly established. They lodged a disciplinary complaint with the College of Doctors and attached a civil claim to a criminal complaint asking that those responsible be identified and held accountable for their son ’ s death (see paragraphs 15 and 22 above). 92. At the end of those proceedings, the applicants could have obtained, at least in theory, an assessment of, and compensation for, the damage suffered. However, neither of these solutions offered them redress. 93. Bearing in mind that the prosecuting authorities and the domestic criminal courts excluded medical negligence as a cause of death and dismissed their civil claim to be compensated for the damage suffered without providing additional reasons (see paragraph 47 above), although based on the same medical documents and reports with which the National College of Doctors had imposed disciplinary sanctions on both doctors involved in the intervention ( Dr C.B. and Dr P.A. ), the Court finds it even more difficult to see how the separate civil claim, lodged on 28 October 2008 (see paragraphs 50-52 above), could have been effective in practice in the applicants ’ particular situation. 94. The Court finally considers that, having pursued criminal investigations - which they had joined as civil parties (see paragraph 22 above) - for more than six years, it would be onerous to expect the applicants to continue the suspended civil proceedings. 95. In the light of the above considerations, the Court considers that the Government ’ s objection of non-exhaustion of available domestic remedies should be dismissed and that the applicants were not provided with effective legal procedures compatible with the procedural requirements of Article 2 of the Convention. 96. Therefore, there has been a violation of Article 2 of the Convention under its procedural limb. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 97. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 98. The applicants claimed EUR 195,000 in respect of non ‑ pecuniary damage. 99. The Government considered the claims excessive. 100. Having regard to all the circumstances of the present case, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 12,000 in respect of non-pecuniary damage. B. Costs and expenses 101. The applicants also claimed EUR 5,000 in total for the costs and expenses incurred before the domestic courts and the Court. However, they did not submit any documents to support their claim. 102. The Government objected to this claim and submitted that the applicants had not proved their claims. 103. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses. C. Default interest 104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention under its procedural head, finding that there had not been a proper investigation into the death of the applicants’ son, for the following reasons in particular. First, the medical authorities had failed to provide an additional forensic report about the incident, even though one was necessary. Furthermore, the authorities had never established whether the supervising nurse had properly carried out her duties, even though these were highly relevant to the alleged cause of death. Moreover, the domestic courts had also found no medical negligence on behalf of the doctors – even though disciplinary tribunals had found that they had failed to obtain the applicants’ informed consent for the procedure, and this consent had been required under Romanian law. Finally, the proceedings had taken an unjustifiably long amount of time, given that six and a half years had elapsed between the death of the applicants’ son and the final decision in the case. |
1,060 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE 19. The relevant Articles of the Civil Code provide: Article 345 “ A creditor of a pecuniary debt is entitled, when serving notice to pay, to claim default interest stipulated by law or by the legal document concerned without having to prove loss. Subject to any contrary statutory provision, a creditor who also establishes other loss is entitled to claim compensation for that as well. ” Article 346 “ A debtor owing a pecuniary debt, even if not served with a notice to pay, shall be liable to pay statutory interest accruing from the date of service of legal proceedings relating to the debt due. ” Article 904 “ Anyone who has been unjustly enriched by means of or to the detriment of another ’ s property shall make restitution of the gain. This obligation shall apply, inter alia, in the event of a payment made unduly or a service rendered for a purpose that has not been realised or has ceased to exist or is illegal or immoral. ...” Article 911 “ Anyone who benefits [ inter alia from unjust enrichment ] shall be subject to the same obligations as if a writ of action had been served on him : ( 1) in the event of a claim for an amount unduly received, if he was aware that the debt did not exist or from the time when he became aware; ( 2) in the event of a claim on grounds of an illegal or immoral purpose. ” 20. Article 6 of Legislative Decree no. 356/1974 provides : “ Debts due and owing from the State shall be subject to a late - payment surcharge that shall accrue from the first working day following the date on which the debt falls due. The surcharge shall accrue at a rate of 1% per month ’ s delay. ” 21. Section 38 ( 2 ) of Law no. 1473/1984 provided that the State was bound to refund tax unduly paid without having to pay interest. Section 3 of Law no. 2120/1993 amended section 38 ( 2 ) of Law no. 1473/1984. That provision, as amended, now provides : “Any direct or indirect, principal or additional, tax or duty, or any fine, recognised in a final decision of an administrative court as having been unduly paid ... shall be offset or refunded with interest at the rate applicable to State bonds for a three-month period. .. . With regard to cases pending at the time of publication of this statute, interest shall start to accrue from the first day of the month following a period of six months after publication of the said statute.” 22. In two judgments (nos. 1274 and 1275/2002 ) the Supreme Administrative Court held that the State had an obligation to pay default interest even in respect of cases that were pending, that is, those in which the tax unduly paid had not yet been refunded on the date of publication of Law no. 2120/1993 ( 4 March 1993). According to the Greek Supreme Administrative Court, that obligation was incumbent on the State from the date on which proceedings were brought in the relevant courts. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 23. The applicant company complained of the tax authorities ’ refusal to pay it interest in compensation for the late payment of a tax credit in its favour. It relied on Article 1 of Protocol No. 1, which provides: “ No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 24. The Government alleged that the applicant company had not had a “ possession ” within the meaning of Article 1 of Protocol No. 1. They submitted that its obligation to pay tax for the year 1 987 had been based on an administrative provision. That provision was presumed legal until annulment by the administrative or judicial authorities. The State had refunded the applicant company the entire sum paid in tax on 12 November 1993, that is, before the case was heard before the Administrative Court. Consequently, the debt claimed by the applicant company had never been acknowledged by a judicial decision as definite and immediately payable. Furthermore, the Government asserted that, in its judgment no. 3547/2000, the Supreme Administrative Court had held that the authorities were not under an obligation to pay late-payment interest on tax unduly paid. In their submission, the Court could not substitute its own point of view for the decision reached by the domestic courts. 25. The applicant company alleged that the State had owed it a debt from the time it had been proved that the tax had been unduly paid. Accordingly, the State had to honour that obligation on the basis of the provisions relating to unjust enrichment (Articles 345, 346 and 904 of the Civil Code ). Moreover, refunding the tax payment in 1993 without late-interest payment – despite the State having been informed in June 1988 that the tax was not owing – amounted to a practice contrary to Article 1 of Protocol No. 1. In the applicant company ’ s submission, the State, through the courts, had not complied with the principle of lawfulness. Articles 345, 346 and 911 of the Civil Code expressly provided for payment of default and statutory interest. Furthermore, in the present case the Supreme Administrative Court had not followed its own case-law, which obliged the State to pay interest even where the case in question was still pending, that is, in cases where the tax unduly paid had not yet been refunded on the date of publication of Law no. 2120/1993. 26. The Court reiterates that a debt can be a “ possession ” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable ( see, inter alia, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A no. 301 ‑ B ). 27. In the present case the Court observes that, in accordance with section 38 ( 2 ) of Law no. 1473/1984, the State must refund any tax or duty recognised by a final court decision as having been unduly paid. On 2 4 June 1988 the applicant company applied to the tax authorities for the first time for a refund of GDR 123, 387, 306. After the applicant company had instituted legal proceedings, the authorities refunded the amount that had been unduly paid on 12 November 1993. In doing so, the authorities acknowledged that they owed the applicant company the tax that had been unduly paid. There is no doubt that the applicant company had a pecuniary interest amounting to a “ possession ” within the meaning of Article 1 of Protocol No. 1 regarding the refund of the tax unduly paid ( see, mutatis mutandis, Buffalo S. r. l. in liquidation v. Italy, no. 38746/97, §§ 28-29, 3 July 2003 ). 28. It therefore remains to be determined whether the State ’ s refusal to pay the applicant company interest to compensate for the delay in refunding the tax unduly paid is compatible with Article 1 of Protocol No. 1. In the Court ’ s view, this question falls to be examined under the first sentence of the first paragraph of Article 1 of Protocol No. 1, which lays down the principle of the peaceful enjoyment of property in general terms ( see, among many other authorities, Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 48, ECHR 2000 ‑ I ). 29. In that connection the Court points out that in its case-law it has consistently linked the payment of default interest to delays by the authorities in refunding credits. In particular, the Court has held on several occasions that the adequacy of compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as unreasonable delay ( see Angelov v. Bulgaria, no. 44076/98, § 39, 22 April 2004, and Almeida Garrett, Mascarenhas Falcão and Others, cited above, § 54). In such a case the Court will mainly have regard to whether the authorities have paid late-payment interest to offset the depreciation of the amount due on account of the time that has elapsed ( see, among other authorities, Akkuş v. Turkey, 9 July 1997, § 29, Reports of Judgments and Decisions 1997 ‑ IV ). In short, under Article 1 of Protocol No. 1 the payment of interest is intrinsically linked to the State ’ s obligation to make good the difference between the amount owed and the amount ultimately received by the creditor. 30. With particular regard to the payment of taxes, the Court reiterates that the financial obligation arising out of the levying of taxes or contributions may infringe the rights guaranteed in Article 1 of Protocol No. 1 if the conditions for a refund impose an excessive burden on the person or entity concerned or fundamentally interfere with their financial security ( see, to that effect, Buffalo S. r. l. in liquidation, cited above, § 32). In that case the Court, examining a question similar to the one under consideration here, held that there had been a breach of Article 1 of Protocol No. 1 on the sole ground that the prolonged unavailability of the tax that had been unduly paid by the applicant company had had a definite and considerable impact on its financial situation ( ibid., § 37). 31. In the instant case the Court observes that the tax unduly paid was refunded on 12 November 1993, that is, five years and approximately five months after 24 June 1988, when the applicant company sought a refund of the sum that it had unduly paid from the Athens tax authorities dealing with limited companies. In the light of the foregoing, the Court considers that the authorities ’ refusal to pay late-payment interest for such a long period upset the fair balance that has to be struck between the general interest and the individual interest. Accordingly, there has been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary and non-pecuniary damage 33. With regard to pecuniary damage, the applicant company submitted to the Court an expert report drawn up at its request by Hadjipavlou Sofianos & Campanis S.A., representatives in Greece of the law firm Deloitte & Touche. The experts established the pecuniary damage sustained by the applicant company for the period between 10 May 1988 and 12 November 1993 as follows : ( i ) either EUR 612, 524 corresponding to the total simple default interest accrued on the sum of GDR 123 ,387,306 ( EUR 362, 105) in respect of the aforementioned period; ( ii ) or EUR 1,231, 831 for the total compound default interest accrued on the sum of GDR 123 ,387, 306 (EUR 362, 105) in respect of the aforementioned period. 34. The applicant company also sought EUR 6, 000 for non-pecuniary damage. 35. The Government submitted that a finding of a violation would in itself constitute sufficient just satisfaction. 36. The Court notes that in the instant case the interference in question relates to the State ’ s refusal to pay the applicant company default interest on the tax unduly paid. The failure to pay default interest together with the inability to use the money in question and the resulting uncertainty undoubtedly caused the applicant company to sustain both pecuniary and non-pecuniary damage that must be compensated. 37. Having regard to the uncertainties inherent in any attempt to estimate the actual loss sustained by the applicant company, and ruling on the basis of equitable considerations as required by Article 41 of the Convention, the Court decides to award the applicant company, by way of a lump sum for the period from 24 June 1988 to 12 November 1993, 6% per annum of the sum refunded ( EUR 362 ,105 ), namely, EUR 120, 000, plus any tax that may be due on that amount ( see, mutatis mutandis, Malama v. Greece (just satisfaction), no. 43622/98, § 11, 18 April 2002 ). 38. With regard to non-pecuniary damage, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction. B. Costs and expenses 39. In respect of the costs and expenses incurred before the domestic courts and the Court, the applicant company claimed EUR 33,386. 29, which it broke down as follows : ( i ) EUR 2, 024. 40 for the proceedings in the domestic courts; ( ii ) EUR 20 ,564. 89 for the proceedings before the Court; ( iii ) EUR 10, 797 for the fees and expenses relating to the preparation of the expert report. The applicant company provided vouchers in support of the expenses referred to under ( ii ) and ( iii ), but not those referred to under ( i ). 40. The applicant company pointed out that, on account of the complexity of the case, it had had to retain three lawyers, whose expertise had been necessary to pursue the case both before the domestic courts and the Court. 41. The Government replied that retaining three lawyers from Deloitte & Touche had not been necessary for this type of case. They submitted that the amount claimed for costs and expenses was excessive. 42. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and are also reasonable as to quantum ( see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI ). In the present case the Court notes that the applicant company has not produced any invoice in respect of the costs incurred before the courts that dealt with the case. This part of its claims must therefore be dismissed. With regard to the costs incurred for the requirements of representing the applicant company before it, the Court observes that the applicant company has provided a breakdown of its claims together with the necessary supporting vouchers. Moreover, the Court points out that it has already held that the use of more than one lawyer may sometimes be justified by the importance of the issues raised in a case ( ibid., § 56 ). However, it considers that, even if the present case was of some complexity, it was not necessary to employ three lawyers. Lastly, the question of the application of Article 41 was not so complex as to require an expert opinion from a specialist firm ( contrast Malama (just satisfaction), cited above, § 17). Having regard to the foregoing, the Court decides to award the applicant company EUR 4, 000 in reimbursement of the costs incurred in the Strasbourg proceedings, plus any tax that may be chargeable on that amount. C. Default interest 43. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 1 (protection of property) of Protocol No. 1. It noted in particular that the tax wrongly paid had been reimbursed approximately five years and five months after the date on which the applicant company had requested its repayment. The Court considered that the authorities’ refusal to pay default interest for such a long period had upset the fair balance to be maintained between the general interest and individual interests. Just satisfaction: The Court decided that Greece was to pay the applicant company 120,000 euros in respect of pecuniary damage. |
115 | Domestic violence / abuse | II. RELEVANT DOMESTIC LAW A. Code of Civil Procedure (applicable up to and including 31 December 2001) 20. Article 74 (1) of the Code of Civil Procedure, provides as follows: “Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened. The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.” 21. Article 76 provides that through an interim measure the court may impose upon the party, within the time assigned by the court, to perform something, to forbear from something, or to bear something. B. Code of Civil Procedure (as applicable from 1 January 2003 to 31 August 2003) 22. The amended Article 74 provided: “Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened. The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.” 23. The amended Article 76 specifically provides that the court may order a party “not to enter temporarily a house or an apartment occupied by a close person or person in his/her care or education in relation to whom there are reasons for he/she being suspected of violence.” C. Civil Code (as applicable from 1 January 2003) 24. Article 705a (8) of the Civil Code provides: “If a further cohabitation is unsupportable due to the physical or mental violence or threats of such violence from a husband or former husband, who is the joint user of an apartment, or from a close person jointly using an apartment, based on a motion of one of a married couple or former married couple the court can limit a right of use of the other of a married couple or exclude him/her totally from the right of use of an apartment. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 25. The applicants complained under Articles 3 and 8 of the Convention that the authorities had failed to protect them in an appropriate manner from treatment to which they had been subjected by their husband/father. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 26. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 27. The Government admitted that the domestic authorities failed to take appropriate measures to protect the second, third and fourth applicants from ill-treatment in violation of Article 3 of the Convention. The Government further admitted that the authorities failed to meet the positive obligation to respect the family and private lives of the second, third and fourth applicants. Nevertheless, the Government contended that the second, third and fourth applicants were no longer victims because they were provided with satisfactory redress at the national level. 28. With regard to the first applicant, the Government submitted that her application was inadmissible as she failed to exhaust domestic remedies. A. Admissibility 29. The Government submitted that the first applicant failed to exhaust domestic remedies. The Regional Court advised her that she had not formulated the claim correctly and that she should have requested the issuance of an interim measure formulated with regard to the specific behaviour of her former husband. In this regard she was in a different position from the second, third and fourth applicants, who, as minors, were warranted special protection by the courts. Unlike the other applicants, the first applicant could not succeed before the civil courts without a legally relevant motion. As she at no time brought such a motion her subsequent complaint to the Constitutional Court was unsuccessful. 30. The Government further submitted that adequate redress had been afforded to the second, third and fourth applicants through the Constitutional Court ’ s decision of 9 July 2003, in which it held in substance that the failure of the lower courts to meet the positive obligation to protect vulnerable minors had violated their rights under Articles 3 and 8 of the Convention. They submitted that redress did not consist exclusively in the provision of financial satisfaction. Rather, they argued that in the event of a violation of Article 2 or 3 of the Convention, compensation of non-pecuniary damage is only one of the possible remedies ( Keenan v. the United Kingdom, no. 27229/95, § 130, ECHR 2 001 ‑ III). In the present case, the Constitutional Court considered the specific circumstances of the case and concluded that the finding of a violation amounted to sufficient satisfaction. In particular, the court noted that the first applicant had contributed to any injury incurred by failing to file a motion in the terms directed by the Regional Court. Moreover, the Government submitted that by the date of the Constitutional Court decision, the applicants ’ husband/father had been sentenced to four years ’ imprisonment and Article 76 of the Code of Civil Procedure had been amended to specify that the courts had jurisdiction to order that a person suspected of violence could not enter a particular house or apartment. 31. The first applicant submitted that the remedy identified by the Government, namely an order that her former husband abstain from inappropriate behaviour towards her and the second, third and fourth applicants, did not amount to an effective remedy because it would not have afforded sufficient protection to her or her children. As the threat of a significant prison sentence failed previously to deter her former husband from “inappropriate behaviour”, it was not reasonable to conclude that the interim measure would have afforded her sufficient protection. 32. The second, third and fourth applicants submitted that they had not lost their victim status as the national authorities had not afforded them adequate redress for the breach of their Convention rights. In particular, they submitted that in similar cases the Constitutional Court had frequently, and almost without exception, granted applicants appropriate financial satisfaction. 33. The Court recalls that it is incumbent on a Government claiming non-exhaustion to satisfy the Court that there was an effective remedy available in theory and in practice at the relevant time which was accessible, capable of providing redress in respect of the applicant ’ s complaints and offering reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV). In view of the comments made by the Regional Court, it would appear that the first applicant would have had a reasonable prospect of success had she applied for an interim measure ordering her former husband to refrain from any inappropriate behaviour. The Court is not persuaded, however, that such an interim measure would have provided adequate redress in respect of the first applicant ’ s claims. She was concerned that her former husband, who at the time stood accused of physically assaulting both her and her children and of sexually abusing one of her daughters, still had a legal right to enter and reside in the rented property which she shared with the children. She therefore requested an interim order excluding him from the property. An order requiring him to refrain from inappropriate behaviour towards her or the children would have afforded substantially weaker protection than that originally sought. In fact, all that the order would have required of the first applicant ’ s former husband was that he refrained from doing acts already prohibited by the criminal law, which previously had failed to provide an adequate deterrent. The Court therefore finds that an application for such an interim measure did not constitute an effective domestic remedy for the purposes of Article 35 § 1 of the Convention. The first applicant has therefore exhausted all effective domestic remedies. 34. With regard to the second, third and fourth applicants, the Court recalls that the nature of the right at stake has implications for the type of remedy the State is required to provide. Where violations of the rights enshrined in Articles 2 and 3 are alleged, compensation for pecuniary and non-pecuniary damage should in principle be part of the range of redress available (see Öneryıldız v. Turkey [GC], no. 48939/99, § 147, ECHR 2004 ‑ XII; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 97, ECHR 2002 ‑ II; Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001 ‑ V; and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001-V). 35. In the present case the State provided a remedy through which compensation for non-pecuniary damage was, at least in principle, part of the redress available. Nevertheless, having found a violation of the second, third and fourth applicants ’ rights under Articles 16 § 2 (prohibition of torture, inhuman or degrading treatment or punishment) and 21 §§ 2 and 3 (inviolability of home) of the Constitution as well as their rights under Article 19 of the Convention on the Rights of the Child, which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence, including sexual abuse, the Constitutional Court declined to award financial compensation, finding instead that the identification of a violation alone amounted to adequate redress. 36. The Court is not persuaded by the reasons proffered by the Government for the decision not to award financial compensation to the second, third and fourth applicants. In view of the Constitutional Court ’ s finding that the lower courts could have – and should have – granted the original application made by the first applicant, and this Court ’ s finding that an application for an interim measure in the terms suggested by the Regional Court did not constitute an effective remedy, the Court finds little force in the Government ’ s submission that any subsequent injury sustained by the applicants was at least in part the first applicant ’ s responsibility for failing to make a second application. Moreover, the conviction of the second, third and fourth applicants ’ father more than two years after the first application was filed on 21 May 2003 and the subsequent amendment to the Code of Criminal Procedure in January 2003 did not amount to adequate redress for three minors who were forced to leave the family home because the State failed to offer them protection from an abusive parent for up to two years. 37. The Court therefore finds that as a result of the Constitutional Court ’ s failure to award financial compensation to the second, third and fourth applicant, they have not obtained adequate redress for the violation of their rights under Articles 3 and 8 of the Convention. 38. The Court further notes that the application is not inadmissible on any other grounds. The application must therefore be declared admissible. B. Merits 39. The Government have admitted that the domestic authorities failed to take appropriate measures to protect the second, third and fourth applicants from ill-treatment in violation of Article 3 of the Convention. The Government have further admitted that the authorities failed to meet the positive obligation to respect the family and private lives of the second, third and fourth applicants. 40. The Court therefore finds that the respondent State failed to discharge the positive obligation to protect the rights of the second, third and fourth applicants under Articles 3 and 8 of the Convention. 41. The first applicant denied that her rights under Articles 3 and 8 were adequately protected by the State 42. The Government, on the other hand, submitted that she had failed to obtain protection from her former husband because she wrongly formulated the claim of her motion. By contrast, all of her subsequent applications for protection were successful. On 7 July 2003, following an amendment to the law, an interim measure was granted forbidding her former husband from entering the apartment and subsequently, on 10 December 2004, the right to the joint lease on the apartment was cancelled. In any case, on 18 June 2003 the first applicant ’ s former husband was convicted of cruelty towards her and the children and was sentenced to over four years in prison. Consequently, the Government submit that the first applicant was provided with effective protection against ill-treatment at the hands of her former husband and against any interference with her right to respect for her private and home life. 43. The Court has already found that the alternate measure proposed by the Regional Court would not have afforded the applicant adequate protection against her former husband. The subsequent orders relied on by the Government were only granted in July 2003 and December 2004. The applicant could not have brought the application for an interim measure forbidding her former husband from entering the apartment until after the relevant law was amended in January 2003. It is not clear why the order severing the tenancy was not granted until December 2004 when the divorce was finalised in May 2002, or indeed whether the fault for this delay lies with the first applicant or the domestic court. In any case the first applicant was not in a position to apply to sever the tenancy until her divorce was finalised in May 2002, approximately a year after the allegations were first brought against her former husband. Given the nature and severity of the allegations, the first applicant and her children required protection immediately, and not a year or two years after the allegations first came to light. The Court finds that during this period no effective remedy was open to the first applicant by which she could secure protection for herself and her children against the acts of her former husband. 44. In relation to the second, third and fourth applicants, the Government admitted that if they were victims for the purposes of Article 35 § 1, there had been a failure to protect them which resulted in a violation of their rights under Articles 3 and 8 of the Convention. In relation to the first applicant, the Government argued that the State had offered her adequate protection against her former husband. The Government have not, however, suggested that the first applicant was not subjected to treatment which reached the threshold of Articles 3 and 8. Therefore, in view of the Court ’ s finding that the State did not offer her adequate protection against her former husband, the Court finds the respondent State failed to discharge the positive obligation to protect the rights of the first applicant under Articles 3 and 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 45. The applicants alleged that the facts of the case also gave rise to a violation of Article 5 § 1 of the Convention. 46. The Court has examined this complaint but finds, in the light of all the material in its possession and in so far as the matters complained of are within its competence, that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 47. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicants claimed the following sums in respect of non-pecuniary damage : The first applicant: EUR 16, 596.96; The second applicant: EUR 33,19 3.92; The third applicant: EUR 23,235.74; The fourth applicant: EUR 23,235.74. 50. The Government submitted that the claims were overstated and did not reflect the true subject value of the claims. 51. While the Court has found a violation of Article 3 of the Convention in respect of each of the four applicants, the violation was breach of a positive obligation to take adequate steps to protect the applicants. As a consequence, the applicants had to leave their home and relocate elsewhere. There is no indication that they subsequently were subjected to further ill-treatment or abuse. 52. Against this background, the Court finds that the circumstances justify the making of an award substantially lower than that claimed by the applicants. Moreover, it sees no basis for distinguishing between the applicants in respect of the quantum of the award. They are a family unit and the violation affected them collectively and equally. 53. The Court therefore awards the applicants jointly EUR 8, 000 in respect of non-pecuniary damage. B. Costs and expenses 54. The applicants also claimed EUR 650.60 for the costs and expenses incurred before the Constitutional Court and EUR 1, 437.8 3 for those incurred before the Court. 55. The Government submitted that the applicants have not provided evidence to prove that they actually paid the sums claimed to their advocate. Moreover, the Government submitted that the amount charged by the advocate and claimed by the applicants was overstated. 56. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Provided that the costs have in fact been incurred, it is not necessary for the applicant to demonstrate that they have been paid to the advocate. In the present case, the advocate has submitted a bill and the Court is satisfied that the costs set out therein were incurred in the course of proceedings before this Court and the Constitutional Court. The Court therefore considers it reasonable to award the applicants jointly the sum of EUR 2, 000 covering costs under all heads. C. Default interest 57. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found that Slovakia had failed to provide the applicant and her children with the immediate protection required against her husband’s violence, in violation of Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to private and family life) of the Convention. |
237 | The definition of idem | II. RELEVANT DOMESTIC LAW A. Code of Administrative Offences of the Russian Federation 29. The relevant provisions of the Code of Administrative Offences (in force at the material time) read as follows : Article 12.26 : Driver ’ s refusal to take an alcohol test “ Refusal by a driver of a lawful demand of a police officer to take an alcohol test shall result in a driving ban of between eighteen months and two years. “ Article 19.3 : Persistent refusal to obey lawful police orders “ Failure to obey a lawful order or demand by a police officer ... in connection with the performance of their official duties related to maintaining public order and security, or impeding the performance by them of their official duties, shall be punishable by a fine of between five and ten months ’ minimum wage or by up to fifteen days ’ administrative detention. ” Article 20.1 : Minor disorderly acts “ 1. A disorderly act, that is to say, a breach of public order in the form of an open disregard for the public accompanied by uttering obscenities in public places, abusively pestering people or destroying or damaging other people ’ s property, shall be punishable by a fine equivalent to between five and ten months ’ minimum wages or by up to fifteen days ’ administrative detention. ” B. Criminal Code of the Russian Federation 30. The relevant provisions of the Criminal Code ( as in force at the material time) read as follows: Article 318 : Use of violence against a public official “1. The use of violence not endangering life or health, or a threat to use such violence, against a public official or his or her relatives in connection with the performance of his or her duties shall be punishable by a fine equivalent to between 200 and 500 months ’ minimum wages ... or by three to six months ’ detention or up to five years ’ deprivation of liberty...” Article 319 : Insulting a public official “Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of between fifty and 100 months ’ minimum wages ..., 120 to 180 hours ’ mandatory work or six months to a year ’ s correctional work.” C. The Police Act (Law no. 1026-I of 18 April 1991) 31. The relevant provisions of the Police Act, in force at the material time, read as follows: Section 11 : Rights of the police “ In the performance of their duties, the police shall have the following rights: ... (14) to keep legally established registers of persons, legal entities, objects and facts and to use the data from the registers; to use IT systems, video and audio recording, film and photo equipment, as well as other technical devices, for documenting their activities; (15) to make ... film and video - recordings ... of suspects and accused persons who are under administrative arrest and of those in respect of whom there are grounds to institute administrative proceedings ... if it is impossible to identify them ... (16) to carry out operational and search measures in accordance with federal law ... ” D. The Operational-Search Activities Act (Law no. 144-FZ of 12 August 1995) 32. The Act contains an exhaustive list of operational-search measures. It includes, in particular, observation (section 6 § 6) and specifies that the operational-search activities may be carried out with the use of video- and audio-recording (section 6, third paragraph ). 33. The operational-search activities may only be carried out, in particular, if there is a pending criminal case (section 7 § 1) or if there are indications of an offence being planned, committed or having been committed but the information is insufficient for an immediate taking of a decision on the institution of criminal proceedings (section 7 § 2 (1)). 34. In its decision no. 86-O of 14 July 1998, the Constitutional Court of the Russian Federation found as follows: “Section 6 [of the Operational-Search Activities Act] only lists the types of operational-search measures but does not determine the form or conditions in which they should be carried out. Operational-search measures, including observation, may only be carried out ... in the circumstances listed in section 7 [of the Act]. It follows, this federal law does not allow [the authorities] to collect, to store, to use or to disseminate information on the private life of the individual who is being investigated unless it is linked to detecting, preventing, curtailing or solving crimes, detecting or identifying perpetrators or other lawful objectives ... Moreover, paragraph 4 of part 7 of section 5 [of the Act] prohibits the operational-search bodies and their officials from disseminating the information concerning the private and family life or the dignity and reputation of citizens, which they had obtained as a result of operational-search measures, without the citizens ’ consent ... ” E. The Mass Media Act ( Law no. 2124-I of 27 December 1991 ) 35. The relevant provisions of the Mass Media Act read as follows: Section 38 : The right to information “ Through mass media, private citizens shall have the right to receive accurate information about the activities of State bodies and organisations, public associations and their officials. ” Section 50 : Covert recording “ The dissemination of reports and materials prepared with the use of hidden audio and video-recording, photography and cinematography shall be allowed in the following cases: ( 1) if it does not infringe citizen ’ s constitutional rights and freedoms; ( 2) if it is necessary to protect the public interest and if measures have been taken to prevent possible identification of third parties; ( 3) if the recording is demonstrably in accordance with a decision of a court of law. ” Section 57 : Absolution from responsibility “ The editorial office, editor-in-chief and journalist shall bear no responsibility for the dissemination of information that ... tarnishes the honour and dignity of private citizens ... or infringes the rights and lawful interests of individuals ... : ( 6) if this information is the literal reproduction of reports and materials or of extracts thereof disseminated by another mass medium which can be ascertained and called to account for a particular breach of the legislation of the Russian Federation on mass media. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 36. The applicant complained that the unlawful filming of him at the police station and broadcasting of that footage on television had breached his right to respect for his private life guaranteed by Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 37. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 38. The Government submitted that a person who had committed offences or crimes should envisage various restrictions on his or her rights, including the right to respect for private life. After the applicant had committed a breach of public order, caused damage to the honour and dignity of the authorities and been escorted to the police station, his private life had been brought into the public domain. The video - recording had been made openly, the applicant had been aware that he was being filmed for television and had not objected to it. In fact, he had asked for the media to be brought to the police station. The Government further claimed that the applicant had been filmed in accordance with the law, with a view to securing evidence of his unlawful behaviour and establishing his identity as an offender. The Murman television company had acted lawfully, because under the relevant legislation it was permitted to seek and obtain information on any subject and to broadcast reliable information about the behaviour of a State official. The TV-21 and Blits television companies had merely rebroadcast the footage filmed by Murman. The Government contended that neither the sending of the videotape by the police chief to the public prosecutor ’ s office nor its circulation for screening to the members of the regional Duma had amounted to “dissemination of information”. 39. The applicant pointed out that, prior to his conviction in administrative and criminal proceedings ( on 27 May 2003 and 29 September 2005 respectively ), he should have been presumed innocent at the time the video - recording had been made and broadcast. He had not agreed to being filmed and the cameraman had given evidence in the civil proceedings that, at the request of the police chief, part of the footage had been filmed covertly. The applicant emphasised that the broadcasting of the footage had not been in the public interest but had solely been intended to tarnish his reputation. It could not have been necessary for the purposes of identifying him because his identity had already been established by the time the cameraman had arrived. Moreover, the police officers had not used their own equipment to film him and had instead invited a television cameraman who had happened to be a friend of the police chief. 2. The Court ’ s assessment (a) Existence of an interference 40. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person ’ s name or image. A person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development. It mainly presupposes the individual ’ s right to control the use of that image including the right to refuse publication thereof ( see Küchl v. Austria, no. 51151/06, § 58, 4 December 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § § 95-96, ECHR 2012; Eerikäinen and Others v. Finland, no. 3514/02, § 61, 10 February 2009; Khuzhin and Others v. Russia, no. 13470/02, § 115, 23 October 2008; Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006; Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005 ‑ I, and Von Hannover v. Germany, no. 59320/00, §§ 50-53, ECHR 2004 ‑ VI). 41. The Court has held on various occasions that the recording of video in the law-enforcement context or the release of the applicants ’ photographs by police authorities to the media disclosed an interference with their right to respect for private life. In the above -mentioned Khuzhin and Sciacca cases, the police made the applicants ’ photographs from the official file available to the press without their consent. In Peck v. the United Kingdom (no. 44647/98, § § 62-63, ECHR 2003 ‑ I ), the disclosure to the media for broadcast use of video footage of the applicant whose suicide attempt was caught on surveillance television cameras was found to be a serious interference with the applicant ’ s private life, notwithstanding that he was in a public place at the time. In a case where the police regulated the security camera in the custody suite of a police station so that it could take clear footage of the applicant and later showed the video to witnesses and during the trial in a public court room, the Court noted that the ploy adopted by the police went beyond the normal or expected use of this type of camera and the recording of such footage amounted to the processing or collecting of personal data about the applicant. Noting that the footage had not been obtained voluntarily or in circumstances where it could be reasonably anticipated that it would be made, the Court considered that the recording and use of the video disclosed an interference with the applicant ’ s right to respect for private life (see Perry v. the United Kingdom, no. 63737/00, § § 39-43, ECHR 2003 ‑ IX ). 42. In the instant case, the applicant was recorded on video while he was at the Severomorsk police station and part of that footage was broadcast on regional television the following day. The Court observes that the applicant consistently denied – in the proceedings before the domestic courts and before the Court – that he had agreed to being filmed. The Government were unable to produce any evidence of the applicant ’ s consent either to being recorded on video – especially given that the recording was partly carried out covertly – or to having the footage broadcast on television. 43. The parties did not dispute that the cameraman from Murman and subsequently the crew of Northern Fleet had arrived at the police station upon the invitation of the police chief with the purpose of capturing the applicant ’ s behaviour on camera. In their submissions, the Government indicated that the police chief had given the media an “official authorisation” to film the applicant. He did not impose any conditions on how the footage would subsequently be used. It follows that a State official had borne direct responsibility for granting the media access to the applicant ’ s image and enabling them to retain the footage and use it for their own purposes, including broadcasting it on public television. 44. In these circumstances and in the light of its above-cited case-law (see, in particular, the Peck and Perry judgments ), the Court finds that the decision of the police chief to invite the television crews and to allow them to record the applicant ’ s image inside the police station and to take the tapes with them, without any restriction on their subsequent use, amounted to an interference with the applicant ’ s right to respect for private life which was attributable to the State. Whether that interference could be considered justified in the particular circumstances of the case will be the subject of its analysis below. (b) Justification for the interference 45. The Court reiterates that, in order to be justified under Article 8 of the Convention, an interference with the applicant ’ s right to respect for private life must be “in accordance with the law”, pursue one or more of the legitimate aims contemplated in paragraph 2 of this Article and be “necessary in a democratic society”. 46. The first requirement of paragraph 2 of Article 8 is that the interference should be “in accordance with the law”. On the facts, the Court notes that the police detained the applicant and brought him to the station on suspicion that he had attempted to drive a car under the influence of alcohol. The applicant could have dispelled the suspicion by taking an alcohol test but he vehemently refused to do so. Instead of showing goodwill and co-operating with the police, he turned disorderly and violent against the officers, abusing them verbally, pulling at their uniforms, disrupting the work of the station and wreaking havoc on the equipment. The Court nevertheless emphasises that, no matter how unacceptable or provocative the applicant ’ s behaviour was, the police officers should have firmly stood guard as custodians of the law and their actions required a solid legal basis. 47. The Russian courts in the civil proceedings and the Government in their observations before the Court cited section 11(15) of the Police Act as a justification for the police chief ’ s decision to invite television cameras and to have the applicant recorded on video. Section 11(15) of the Police Act granted the police the right to take fingerprints or to film individuals if it was impossible to identify them (see paragraph 31 above). The Court fails to see how that provision could be applicable in the instant case, where the applicant ’ s identity had been established shortly after he had arrived at the police station, when an officer had searched his clothing and found his professional identity card and the applicant had confirmed his name and occupation (see paragraph 6 above). For the first time in the proceedings before the Court the Government also invoked section 11 (14) of the Police Act concerning the police ’ s power to keep various legally established registers. Their submissions were, however, confined to quoting the text of this provision, without explaining to what extent it could be relevant in the circumstances of the present case which did not concern the recording of the applicant ’ s image for the purposes of any such register. 48. The Government also claimed that the recording was intended to secure evidence of the applicant ’ s unlawful behaviour. The Court notes, on the facts, that at the time the applicant was filmed, he had neither been formally detained nor charged with any offence, administrative or otherwise, and that no proceedings had been initiated against him. The Government did not cite any provision of Russian law which would have allowed the police to collect evidence prior to the institution of any kind of proceedings and in the absence of any procedural decision to that effect. As matters transpired, the video-recording was not included in evidence in the administrative proceedings and was not mentioned in the judgment (see paragraph 21 above). It is nevertheless not inconceivable that the filming was performed in accordance with the Operational-Search Activities Act which allowed the police to carry out “observation” of individuals who were suspected of being in the process of committing criminal offences, using audio and video equipment (see paragraphs 32 and 33 above). This could be legally done, even if a decision on the institution of criminal proceedings were to be taken at a later stage rather than immediately (ibid.) 49. In any event, the interference in this case was not limited to the recording of the applicant ’ s image, but also included making the footage available to the media, without restricting its subsequent use. Assuming that the footage was obtained in the framework of the operational-search activities, the same Operational-Search Activities Act expressly prohibited police officers from disseminating such information without the consent of the individual concerned. The Russian Constitutional Court reinforced that prohibition by pointing out that the information may only be used for the purposes of law enforcement, such as crime detection or prevention or identification of perpetrators (see paragraph 34 above). It follows that, in the absence of the applicant ’ s consent, the release of the video recording to the regional television was in flagrant breach of the domestic law. 50. Finally, as regards the Government ’ s reliance on the Media Act, the Court reiterates that in the present case it is not concerned with the lawfulness of the actions of television companies but with the legal basis for the actions of the police which was conspicuously lacking. 51. The Court reiterates that, where it has been shown that an interference was not in accordance with the law, it is not necessary to investigate whether the interference pursued a “legitimate aim” or was “necessary in a democratic society” (see Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 129, 13 January 2009; Sciacca, cited above, § 30, and Dobrev v. Bulgaria, no. 55389/00, § 165, 10 August 2006). 52. There has therefore been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 53. The applicant complained under Article 7 of the Convention that his conviction, first in administrative proceedings and later in criminal proceedings, amounted to double jeopardy. The Court considers that this complaint falls to be examined from the standpoint of Article 4 of Protocol No. 7 to the Convention which provides, in the relevant part, as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State ... ” A. Admissibility 54. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 55. The Government evaluated the facts of the case and concluded that the applicant had been found criminally liable in respect of acts that had been committed in a different place and time from those that had formed the basis of his administrative conviction. In addition, those offences had been different in terms of how dangerous to the public they were. The Government maintained that there had been no violation of Article 4 of Protocol No. 7. 56. The applicant argued that the time period during which the offences defined in Article 19.3 and 20.1 of the Code of Administrative Offences and Article 318 and 319 of the Criminal Code had been committed was the same, and that it had lasted from the moment he had arrived at the police station ( 2 p.m. ) until his departure at 7.30 p.m. Furthermore, it appeared from the domestic judgments that both the administrative and criminal offences had targeted the same police officers T., U., K., S., M. and others who had been granted victim status in the criminal proceedings. Finally, the actus reus of the above offences largely overlapped and the criminal offences did not contain any elements that had not been previously examined in the administrative proceedings. The applicant emphasised that the judge who had examined the administrative charges against him had had legal grounds to discontinue those proceedings and to refer the matter to a public prosecutor if she had considered that there were indications of a criminal offence; however, she had not chosen to do so which meant, by converse implication, that the applicant ’ s acts had not amounted to a criminal offence. Her determination of the case was therefore binding on the other public authorities. 2. The Court ’ s assessment 57. The applicant alleged a violation of the non bis in idem principle, that is to say the guarantee against the duplication of proceedings in connection with the same offence. The Court notes that the events of 27 April 2003 gave rise to two separate sets of proceedings against the applicant: in the first round of proceedings he was found guilty under the Code of Administrative Offences and ordered to pay a fine, and in the second set of proceedings he was found guilty under the Criminal Code and ordered to pay a larger fine. The Court accordingly has to examine three issues: whether the first proceedings were criminal in nature; whether the offences for which the applicant was prosecuted were the same ( idem ), and whether there was a duplication of proceedings ( bis ). (a) Whether the first proceedings were criminal in nature 58. By the Town Court ’ s judgment of 14 May 2003, as upheld on appeal by the Regional Court on 27 May 2003, the applicant was found guilty of offences which were classified as “administrative” under domestic law. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem for the purposes of Article 4 § 1 of Protocol No. 7. Otherwise, the application of that provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention. The notion of “penal procedure” within the meaning of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 52, ECHR 2009, with further references ). 59. The Court ’ s established case-law sets out three criteria, commonly known as the “ Engel criteria ” (see Engel and Others v. the Netherlands, 8 June 1976, § 85, Series A no. 22 ), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. That, however, does not preclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin, cited above, § 53, with further references ). 60. As regards the classification of the offences under domestic law, the Court notes that under Articles 12.26, 19.3 and 20.1 of the Code of Administrative Offences, they were all characterised as “ administrative ” ones. As indicated above, however, the classification under domestic law is not decisive. The Court indeed recalls that the sphere defined in the Russian legal system as “ administrative ” embraces certain offences that have a criminal connotation but are too trivial to be governed by criminal law and procedure ( ibid., § 54, with further references). 61. With respect to the nature of the offences, the Court notes that the applicant was found guilty of three administrative offences: refusing to take an alcohol test, persistently refusing to obey lawful police orders and committing minor disorderly acts. However, since there was no allegation of a repetition of proceedings in respect of the first offence, the Court will focus its examination on the second and third offences. The aim of those two offences was to guarantee the protection of human dignity and public order, that is to say, the values and interests which normally fall within the sphere of protection of criminal law (compare with Sergey Zolotukhin, cited above, § 55, and Kadubec v. Slovakia, 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI ). The Court reiterates that the reference to the “minor” nature of the acts did not, in itself, preclude their classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 104, ECHR 2003 ‑ X ). 62. The Court further recalls that the degree of severity of the measure is determined by reference to the maximum potential penalty for which the relevant law provides (see Sergey Zolotukhin, cited above, § 56). The Code of Administrative Offences provided for fifteen days ’ imprisonment as the maximum penalty in respect of those two offences. That the applicant was eventually ordered to pay a fine does not diminish the importance of the fact that his liberty was initially at stake ( see Ezeh, cited above, § 120). 63. In conclusion, the general character of the offences of “persistent refusal to obey lawful police orders ” and “minor disorderly acts”, together with the severity of the potential penalty, were sufficient to bring the applicant ’ s conviction for those offences within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7. (b) Whether the offences for which the applicant was prosecuted were the same ( idem ) 64. The Court will next examine whether the applicant was prosecuted for the same offences. The applicable test has recently been clarified in the Sergey Zolotukhin judgment (cited above, §§ 78-84). The Court held that it must disregard the legal characterisation of the offences in domestic law and take the underlying factual circumstances as its focal point of comparison. 65. In the present case, the facts that gave rise to the administrative fine imposed on the applicant related to his unruly behaviour at the Severomorsk police station on 27 April 2003. The judgment of 14 May 2003 stated that he had uttered obscenities and been disrespectful to the police officers K., S., U., P., G. and M. The same facts formed the central element of the criminal charges against the applicant and the judgment of 8 August 2005 referred to the same behaviour (“uttered obscenities”, “ caused damage to his dignity and undermined his authority”) that had taken place on the same day at the same police station, with the same police officers having been recognised as victims and cross-examined during the trial. The criminal charges therefore encompassed the facts of the administrative offence in its entirety and, conversely, the administrative offence did not contain any elements that were not present in the criminal offences with which the applicant was charged. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7. (c) Whether there was a duplication of proceedings ( bis ) 66. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of that provision if it has acquired the force of res judicata. This is the case when the decision is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references). 67. In the instant case the Town Court ’ s decision on the administrative offences was upheld on appeal and became “final” on 27 May 2003, two months before the regional prosecutor requested the Regional Court to authorise the institution of criminal proceedings against the applicant. 68. Since Article 4 of Protocol No. 7 applies even where an individual has merely been prosecuted in proceedings which have not resulted in a conviction (see Sergey Zolotukhin, cited above, § 110, with further references), the fact that the recovery of the fine imposed under Article 319 of the Criminal Code became time-barred has no bearing on the applicant ’ s allegation that he was prosecuted, tried and convicted of that charge for a second time. Accordingly, the Court considers that there was a duplication of proceedings. (d) Conclusion 69. The Court has found that the applicant was convicted of “persistent refusal to obey police orders” and “minor disorderly acts” in administrative proceedings which are to be assimilated to “penal procedure” within the autonomous Convention meaning of that term. After his conviction had become final, criminal charges relating to the same set of factual circumstances were brought against him and he was convicted again in the proceedings that followed. 70. There has accordingly been a violation of Article 4 of Protocol No. 7. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 71. The applicant also complained under Articles 3 and 5 of the Convention that he had been unlawfully arrested and ill-treated at the police station on 27 April 2003. Since his application was only lodged on 18 April 2004, that is to say almost a year later, this part of the application is obviously out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 72. Lastly, the applicant complained under Articles 6 and 13 of the Convention of certain procedural irregularities in the criminal proceedings against him. The Court has examined those complaints as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 73. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 74. The applicant claimed 115,000 Russian roubles (RUB) – the equivalent of 2,580 euros (EUR) on the date of the submission of his claims – in respect of pecuniary damage, which comprised the legal fees paid to his defence team in the criminal proceedings and the fine of RUB 30,000. He further claimed RUB 250,000 (EUR 5,610) in respect of non-pecuniary damage. 75. The Government submitted that they were under no obligation to reimburse the fine because it had been lawfully imposed on the applicant. They considered that the amount of non-pecuniary damage was unreasonable. 76. The Court considers that the applicant incurred both pecuniary and non-pecuniary damage in connection with the duplication of proceedings against him and the broadcasting of the footage filmed at the police station. Accordingly, it awards him an aggregate amount of EUR 5,000 in respect of pecuniary and non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 77. The applicant also claimed EUR 450 for costs and expenses incurred before the Court. 78. The Government did not comment on this part of the claims. 79. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 450 for the proceedings before it, plus any tax that may be chargeable to the applicant. C. Default interest 80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that had been a violation of Article 4 of Protocol No. 7. It found that the applicant had been convicted of “persistent refusal to obey police orders” and “minor disorderly acts” in administrative proceedings which were to be assimilated to “penal procedure” within the autonomous Convention meaning of that term. After his conviction had become final, criminal charges relating to the same set of factual circumstances were brought against him and he was convicted again in the proceedings that followed. |
771 | Health data | II. RELEVANT NATIONAL LAW A. Legal regulation of the MADEKKI 24. Section 10 of the Medical Treatment Law ( Ārstniecības likums ) at the relevant time provided that the MADEKKI was the institution responsible for monitoring the quality of medical care provided in medical institutions. 25. The MADEKKI ’ s work at the relevant time was governed in more detail by its statute ( nolikums ), which had been approved by the Cabinet of Ministers. The statute provided that the MADEKKI was a government institution, whose main functions were to inspect and monitor the professional quality of health care in medical institutions irrespective of their ownership status (paragraph 1). Paragraph 3 of the statute listed the principal functions of the MADEKKI, such as to examine complaints in order to protect the rights of patients (paragraph 3.3), to oversee and issue reports concerning the professional quality of medical care in the event of complaints (paragraph 3.4), to issue reports on the quality of medical care in medical institutions (paragraph 3.6) and the like. 26. According to its statute the MADEKKI had a right to carry out scheduled (“ plānveida ”) checks on the quality of medical care as well as to carry out the required checks in response to complaints and requests (paragraph 4.1). Paragraph 4.2 authorised the MADEKKI “to request from private individuals and officials documents and information concerning questions within its field of competence”. If the MADEKKI found that laws had been broken in the course of providing health care, it was authorised to apply administrative fines and issue warnings, as well as to give appropriate recommendations to doctors and administrators of medical institutions. 27. Lastly, section 7 2 of the MADEKKI statute provided that its staff had to maintain confidentiality with regard to any information obtained in the performance of their professional duties. B. Personal data 28. The Personal Data Protection Law ( Fizisko personu datu aizsardzības likums ) provides, in section 11, that the processing ( which is defined as any activities with personal data, including collecting, registering, using, and so on) of sensitive personal data (including information about a person ’ s health) is permitted only after having received written consent from the data subject. Without such consent personal data may be processed only in a limited number of situations, including “ if ... necessary for the purposes of medical treatment [or] the provision or administration of heath care services” (section 11(5)). 29. Section 7 of the Personal Data Protection Law provided more generally that processing of personal data was allowed only if that law did not provide otherwise and if at least one of the other conditions was present. One of the additional conditions was that the processing of the data was necessary for a system administrator to carry out his legal duties (section 7(3)). A “system administrator” for the purposes of this Law was “a natural or legal person who determines the aims of a data processing system and the means of processing [ of the data]”. 30. As in force at the relevant time, section 50 of the Medical Treatment Law provided that information concerning patients ’ treatment and diagnosis could only be provided to a limited number of institutions, including the MADEKKI. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 31. The applicant complained that the MADEKKI had violated her right to respect for her private life, protected Article 8 of the Convention, which, in so far as is relevant, reads as follows: “1. Everyone has the right to respect for his private ... life .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 32. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 33. The parties agreed that the applicant ’ s medical data formed part of her private life and that the collection of such data by the MADEKKI constituted an interference with her right to respect for her private life. The Court sees no reason to hold otherwise. Therefore there has been an interference with the applicant ’ s right to respect for her private life. It remains to be determined whether the interference complied with the requirements of the second paragraph of Article 8 of the Convention. 1. Submissions of the parties 34. The Government maintained that the interference had been in accordance with the law. They relied on the conclusions reached by the Senate of the Supreme Court to the effect that the MADEKKI was authorised to check the quality of health care not only in situations where it had received a complaint from a patient. The Senate was of the opinion that a provider of health care services, “with the aim of protecting public interests, is also entitled to request the assessment of the quality of medical care ” in order that, should any irregularities be found, they might be eliminated and their recurrence with respect to other patients avoided in the future. 35. The Government further relied on the conclusions of the Senate that sections 10 (see paragraph 24 above) and 50 (see paragraph 30 above) of the Medical Treatment Law in combination with the relevant provisions of the statute of the MADEKKI (the Government referred, inter alia, to paragraphs 1, 3.3, 3.4, 3.6, 4.1 and 4.2 of the statute), and taking into account the exception to the prohibition of the processing of personal data contained in section 11(5) of the Personal Data Protection Law, entitled the MADEKKI to collect and process the applicant ’ s sensitive data “in order to monitor the quality of medical care, which in turn is part of the provision of heath care services”. 36. The Government submitted that the MADEKKI had collected the applicant ’ s data in order to establish whether the treatment administered to her on 16 June 1997 had complied with the legislation in force at the material time. If any violations of the applicable legislation had been found, it would have helped to prevent similar situations from arising in the future. Thus the purpose of collecting the applicant ’ s personal data had been to protect public health and the rights and freedoms of others. 37. In addition, referring to a statement made by the director of the Cēsis hospital during the hearing before the Administrative District Court, the Government pointed out that the MADEKKI assessment had been ordered in order to determine whether the doctor at the Cēsis hospital who had performed the tubal ligation had committed any crime. 38. The Government further submitted that the hospital requested the MADEKKI to assess the treatment administered to the applicant “ as a result of the applicant ’ s attempts to achieve an out-of-court settlement with the hospital seeking to recover compensation for damage caused by the allegedly unauthorised tubal ligation. Given that [the hospital] was the respondent in a civil case which may have resulted in significant legal and financial implications, it is natural that it sought independent expert advice. It must specifically be noted that [the hospital] sought expert advice from the national independent institution competent to deal with the issue, the same institution that would have been consulted by courts, had the case proceeded further”. 39. The Government submitted that the interference with the applicant ’ s right to respect for her private life had been of an “insignificant level”. The MADEKKI, upon having completed its examination of the applicant ’ s data, had only informed the Cēsis hospital of the conclusions of its report (see paragraph 1 2 above), without making the full report available. The Government thus concluded that the MADEKKI had processed the applicant ’ s data very carefully and had respected the applicable national data protection legislation. 40. The applicant argued that the domestic law did not grant the MADEKKI the right to collect confidential medical data without receiving the patient ’ s prior consent. She submitted that section 50 of the Medical Treatment Law on which the Government sought to rely did not give the MADEKKI the right to acquire information about patients. Rather, that provision left the decision whether or not to give information about patients to the discretion of the medical institutions in possession of such information. Should the medical institution be of the opinion that disclosure would be at odds with the data protection legislation or other laws, it had an obligation to decline the MADEKKI ’ s request. 41. The applicant further criticised the Government ’ s reliance on the exception contained in section 11(5) of the Personal Data Protection Law, arguing that it was doubtful that medical treatment dispensed in 1997 could be considered to have been “administered” in 2004. 42. The applicant considered that the statute of the MADEKKI, having been approved by the Cabinet of Ministers, which is an executive and not a legislative body, could not be considered “law” for the purposes of Article 8 § 2 of the Convention. 43. The applicant argued that the only aim for which her personal data were collected by the MADEKKI had been to assist the Cēsis hospital in gathering evidence for use in the litigation concerning her sterilisation, as evidenced by the fact that the Cēsis hospital only sent its request to the MADEKKI after the applicant had set about initiating settlement negotiations with regard to her sterilisation. The applicant disagreed with the submission of the Government that the information had been collected in order to establish potential criminal liability of the doctor of the Cesis hospital. 44. The applicant was critical of the proposition that the MADEKKI had collected her personal data to protect public health or the rights and freedoms of others, as no threat to anyone ’ s health, rights or freedoms had been identified. 45. The applicant argued that the interference in the present case had not been necessary in a democratic society. Even assuming that the actions of the MADEKKI had pursued a legitimate aim in aiding the Cēsis hospital in the process of ascertaining the lawfulness of its employees ’ actions, it could have done so by using means less restrictive of individual rights. For instance, the Cēsis hospital could have forwarded the applicant ’ s data to the MADEKKI without disclosing her name. 46. The applicant also disagreed with the Government ’ s submission that the interference with her right to respect for her private life had been insignificant. Citing I. v. Finland (no. 20511/03, § 38, 17 July 2008), the applicant submitted that the collection of her personal data had undermined her confidence in the medical profession and in the health services in general. 2. Assessment of the Court 47. The Court refers to the interpretation given to the phrase “in accordance with the law” in its case-law (as summarised in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR 2008 ). Of particular relevance in the present case is the requirement for the impugned measure to have some basis in domestic law, which should be compatible with the rule of law, which, in turn, means that the domestic law must be formulated with sufficient precision and must afford adequate legal protection against arbitrariness. Accordingly the domestic law must indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise. 48. The Court takes note of the Government ’ s argument that in the light of the Senate of the Supreme Court ’ s interpretation of the domestic law the MADEKKI was authorised to assess the quality of medical care provided in medical institutions not only upon receiving complaints from patients but also in response to “requests”, which to the Senate meant requests from medical institutions. In the course of carrying out such checks the statute of the MADEKKI as well as section 50 of the Medical Treatment Law entitled the MADEKKI to collect information and documents relating to questions within its field of competence. 49. The Court reiterates that according to Article 19 of the Convention its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention ( see García Ruiz v. Spain [GC], no. 30544/96, § 29, ECHR 1999 ‑ I ). Against this background, the Court turns to the interpretation of section 11(5) of the Personal Data Protection Law given by the Senate of the Supreme Court (see paragraph 28 above). 50. The Court notes that in the present case the MADEKKI started to collect the applicant ’ s medical data in 2004, seven years after her sterilisation and at a time when the applicant was involved in civil litigation with the Cēsis hospital. In the Court ’ s view this lengthy delay raises a number of questions, such as the one highlighted by the applicant, namely, whether data collection in 2004 can be deemed to have been “ necessary for the purposes of medical treatment [ or ] the provision or administration of heath care services ” within the meaning of section 11(5) of the Data Protection Law, if the actual health care services had been provided seven years earlier, in 1997. Such a broad interpretation of an exception to the general rule militating against the disclosure of personal data might not offer sufficient guarantees against the risk of abuse and arbitrariness ( see S. and Marper, cited above, § 99 ). 51. In this context the Court finds it noteworthy that the applicant had never been informed that the MADEKKI had collected and processed her personal data in order to carry out a general control of the quality of health care provided by the Cēsis hospital to patients in situations comparable to the one of the applicant. The hospital itself was never given any recommendations on how to improve the services provided by it. The only information that was received by the hospital pertained specifically to the actions of the doctor responsible for the applicant ’ s treatment and that information was provided to the hospital at a time when there was an ongoing litigation between the applicant and the hospital. 52. The Court notes that the applicable legal norms described the competence of the MADEKKI in a very general fashion. The Senate of the Supreme Court did not explain which of its functions the MADEKKI had been carrying out or what public interest it had been pursuing when it issued a report on the legality of the applicant ’ s treatment. Accordingly the Senate did not and could not examine the proportionality of the interference with the applicant ’ s right to respect for her private life against any public interest, particularly since it came to the conclusion that such weighing had already been done by the legislator (see paragraph 22 above). 53. Moreover, this took place against the background of domestic law, as in force at the relevant time, which did not provide for the right of the data subject to be informed that the MADEKKI would be processing his or her medical data before it started collecting the data. Thus the MADEKKI was under no legal obligation to take decisions concerning the processing of medical data in such a way as to take the data subject ’ s views into account, whether simply by asking for and potentially receiving the data subject ’ s consent or by other means (see Z v. Finland, cited above, § 101, referring to W. v. the United Kingdom, 8 July 1987, § 64, Series A no. 121 ). 54. The Court cannot accept the Government ’ s suggestion that the MADEKKI was collecting information concerning the applicant ’ s medical history in order to determine whether the doctor who had performed the tubal ligation had to be held criminally liable. Firstly, seven years after the event the prosecution had certainly become time-barred (depending on the legal classification of the potentially criminal act, the statutory limit was most likely two years but certainly no more than five years). Secondly, neither the director of the Cēsis hospital nor the MADEKKI had the legal authority to determine, even on a preliminary basis, the criminal liability of private individuals. 55. Turning to the Government ’ s argument that the MADEKKI was authorised by the law to assist the hospital in litigation, in order to curtail the legal costs (see paragraph 38 above), the Court notes that the MADEKKI is part of the State administration structure, the raison d ’ être of which is to serve the interests of the general public within the limits of its competence. According to the Government, a hospital, which at the time was a respondent party in private ‑ law litigation, was authorised to seek independent expert advice from the MADEKKI. Such a hypothesis was not discussed by the Senate of the Supreme Court. The Court has difficulties in understanding the legal basis for the argument of the Government, since, at least prima facie, none of the legal norms cited by the Government states that providing independent expert advice in ongoing litigation is one of the functions of the MADEKKI. 56. The Court reiterates that the protection of personal data, not least medical data, is of fundamental importance to a person ’ s enjoyment of the right to respect for his or her private life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve confidence in the medical profession and in the health services in general (see Z v. Finland, cited above, § 95, and Varapnickaitė-Mažylienė v. Lithuania, no. 20376/05, § 44, 17 January 2012 ). 57. The Court notes that the applicable law did not limit in any way the scope of private data that could be collected by the MADEKKI. In the present case the MADEKKI collected the applicant ’ s medical data concerning a period spanning seven years, starting one year before the disputed tubal ligation and ending six years after it. The medical information collected and analysed by the MADEKKI originated from three different medical institutions. The relevance and sufficiency of the reasons for collecting information about the applicant that was not directly related to the procedures carried out at the Cēsis hospital in 1997 appear not to have been examined at any stage of the domestic procedure (see Z v. Finland, cited above, § 110). 58. The Court notes that the MADEKKI appears to have collected the applicant ’ s medical data indiscriminately, without any prior assessment of whether the data collected would be “potentially decisive”, “relevant” or “of importance” ( see M.S. v. Sweden, cited above, §§ 38, 42 and 43, and L.L. v. France, no. 7508/02, § 46, ECHR 2006 ‑ XI ) for achieving whatever aim might have been pursued by the MADEKKI ’ s inquiry. In this context it becomes less relevant whether the staff of the MADEKKI had a legal duty to maintain the confidentiality of personal data (see paragraph 20 above and compare M.S. v. Sweden, cited above, § 43). 59. In the light of the above considerations the Court cannot find that the applicable Latvian law was formulated with sufficient precision and afforded adequate legal protection against arbitrariness. Neither did it indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise. 60. The Court accordingly concludes that the interference with the applicant ’ s right to respect for her private life was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. Consequently there has been a violation of Article 8. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 62. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. 63. The Government argued that the applicant had not substantiated her claim in respect of non-pecuniary damage. The Government submitted that, should the Court decide to award the applicant anything under this head, the award should not exceed EUR 3,500. 64. The Court considers that the applicant must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, it awards the applicant EUR 1 1 ,000 in respect of non-pecuniary damage. B. Costs and expenses 65. The applicant also claimed EUR 2,183 for the costs and expenses incurred before the domestic courts and EUR 1,435 for those incurred before the Court. 66. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum (see The Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 23, Series A no. 38 ). 67. The Government referred to the applicant ’ s submission that owing to her poor financial situation she had not actually paid the two invoices issued by her representative for the costs and expenses of her representation before the Court. Therefore, according to the Government, the costs and expenses were not “actually incurred”. 68. The Court notes that, although the applicant has not yet actually paid part of the legal fees and expenses, she is bound to pay them pursuant to a contractual obligation. Accordingly, in so far as the applicant ’ s representative is entitled to seek payment of her fees and expenses under the contract, the legal fees were “actually incurred” ( see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 106, ECHR 2009 ). 69. The Government further submitted that the sum claimed by the applicant with respect to the domestic proceedings was “exorbitant”. To support that argument, the Government relied upon the law setting down the rates to be paid by the State to legal-aid lawyers in the Latvian legal system. 70. In the light of the complexity and the scope of the domestic proceedings, the Court, having taken into account the documents in its possession, finds the sum claimed in that respect reasonable as to quantum. The Court further notes that the Government have not disputed the applicant ’ s claim in so far as it relates to the costs and expenses incurred in respect of the proceedings before the Court. The Court considers the applicant ’ s claim in that respect reasonable as to quantum as well. 71. Therefore the Court considers it reasonable to award the sum of EUR 2, 76 8, covering costs under all heads, which represents the requested sum, less EUR 850 already paid to the applicant ’ s lawyer in legal aid. C. Default interest 72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In this judgment the Court recalled the importance of the protection of medical data to a person’s enjoyment of the right to respect for private life. It held that there had been a violation of Article 8 of the Convention in the applicant’s case, finding that the applicable law had failed to indicate with sufficient clarity the scope of discretion conferred on competent authorities and the manner of its exercise. The Court noted in particular that Latvian law in no way limited the scope of private data that could be collected by MADEKKI, which resulted in it collecting medical data on the applicant relating to a seven-year period indiscriminately and without any prior assessment of whether such data could be potentially decisive, relevant or of importance for achieving whatever aim might have been pursued by the inquiry at issue. |
107 | Taking of children into care | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Child Welfare Act 122. The relevant sections of the Child Welfare Act of 17 July 1992 ( barnevernloven ) provide : Section 4-1. Consideration of the child ’ s best interests “When applying the provisions of this chapter, decisive importance shall be attached to finding measures which are in the child ’ s best interests. This includes attaching importance to giving the child stable and good contact with adults and continuity in the care provided.” Section 4-6. Interim orders in emergencies “If a child is without care because the parents are ill or for other reasons, the child welfare services shall implement such assistance as is immediately required. Such measures shall not be maintained against the will of the parents. If there is a risk that a child will suffer material harm by remaining at home, the head of the child welfare administration or the prosecuting authority may immediately make an interim care order without the consent of the parents. In such a case the head of the child welfare administration may also make an interim order under section 4-19. If an order has been made under the second paragraph, an application for measures as mentioned in section 7-11 shall be sent to the county social welfare board as soon as possible, and within six weeks at the latest, but within two weeks if it is a matter of measures under section 4-24. If the matter has not been sent to the county social welfare board within the time-limits mentioned in the fourth paragraph, the order shall lapse.” Section 4-12. Care orders “A care order may be issued (a) if there are serious deficiencies in the daily care received by the child, or serious deficiencies in terms of the personal contact and security needed by a child of his or her age and development, (b) if the parents fail to ensure that a child who is ill, disabled or in special need of assistance receives the treatment and training required, (c) if the child is mistreated or subjected to other serious abuse at home, or (d) if it is highly probable that the child ’ s health or development may be seriously harmed because the parents are unable to take adequate responsibility for the child. An order may only be made under the first paragraph when necessary due to the child ’ s current situation. Hence, such an order may not be made if satisfactory conditions can be created for the child by assistance measures under section 4-4 or by measures under section 4-10 or section 4-11. An order under the first paragraph shall be made by the county social welfare board under the provisions of Chapter 7.” Section 4-19. Contact rights. Secret address “Unless otherwise provided, children and parents are entitled to have contact with each other. When a care order has been made, the county social welfare board shall determine the extent of contact, but may, for the sake of the child, also decide that there should be no contact. The county social welfare board may also decide that the parents should not be entitled to know the child ’ s whereabouts. ... The private parties cannot request that a case regarding contact be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months. ...” Section 4-20. Withdrawal of parental responsibilities. Adoption “If the county social welfare board has made a care order for a child, it may also decide that the parents must be stripped of all parental responsibilities. If, as a result of the parents being stripped of parental responsibilities, the child is left without a guardian, the county social welfare board shall as soon as possible take steps to have a new guardian appointed for the child. Where an order has been made withdrawing parental responsibilities, the county social welfare board may give its consent for a child to be adopted by persons other than the parents. Consent may be given if (a) it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her, and (b) adoption would be in the child ’ s best interests, and (c) the persons applying for adoption have been the child ’ s foster parents and have shown themselves fit to bring up the child as their own, and (d) the conditions for granting an adoption under the Adoption Act are satisfied. Where the county social welfare board consents to adoption, the Ministry [ of Children and Equality] shall issue an adoption order.” Section 4-20a. Contact between the child and his or her biological parents after adoption [added in 2010] “Where the county social welfare board issues an adoption order under section 4-20, it shall, if any of the parties have requested it, at the same time consider whether there shall be contact between the child and his or her biological parents after the adoption has been carried out. If limited contact after adoption in such cases is in the child ’ s best interests, and the persons applying for adoption consent to such contact, the county social welfare board shall make an order for such contact. In such case, the county social welfare board must at the same time determine the amount of contact. ... A contact order may only be reviewed if special reasons justify doing so. Special reasons may include the child ’ s opposition to contact or the biological parents ’ failure to comply with the contact order. ...” Section 4-21. Revocation of care orders “The county social welfare board shall revoke a care order where it is highly probable that the parents will be able to provide the child with proper care. The decision shall nonetheless not be revoked if the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her. Before a care order is revoked, the child ’ s foster parents shall be entitled to state their opinion. The parties may not request that a case concerning revocation of a care order be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months. If a request for revocation of the previous order or judgment was not upheld with reference to section 4-21, first paragraph, second sentence, new proceedings may only be requested where documentary evidence is provided to show that significant changes have taken place in the child ’ s situation.” Section 7-5. The board ’ s composition in individual cases “In individual cases, the county social welfare board shall consist of a chairman/chairwoman, one member of the ordinary committee and one member of the expert committee. When necessary due to the complexity of the case, the chairman/chairwoman may decide that the board, in addition to the chairman/chairwoman, shall consist of two members of the ordinary committee and two members of the expert committee. If the parties consent thereto, the chairman/chairwoman may decide cases as mentioned in the first paragraph alone unless this is precluded by due regard for the satisfactory hearing of the case. Where the case concerns a request for an alteration in a previous decision/order or judgment, the chairman/chairwoman may decide the case alone if this is unobjectionable with due regard for the subject of the case, its complexity, the need for professional expertise, and a proper hearing of the case. Where the case concerns an extension of a placement order made by the county social welfare board under section 4-29, the chairman/chairwoman shall decide the case alone.” B. Case-law under the Child Welfare Act 123. The Supreme Court has delivered several judgments on the Child Welfare Act. Of relevance in the present context is its judgment of 23 May 1991 ( Rt. 1991, page 557), in which the Supreme Court stated that since withdrawal of parental responsibilities with a view to adoption involves permanently severing the legal ties between the child and its biological parents and other relatives, strong reasons have to be present in order for a decision of that sort to be taken. It emphasised, moreover, that a decision to withdraw parental responsibilities must not be taken without first having carried out a thorough examination and consideration of the long-term consequences of alternative measures, based on the concrete circumstances of each case. 124. In a later judgment, of 10 January 2001 ( Rt. 2001, page 14), the Supreme Court considered that the legal criterion “strong reasons” in this context should be interpreted in line with the Court ’ s case-law, in particular Johansen v. Norway, no. 17383/90, § 78, 7 August 1996. This meant, according to the Supreme Court, that consent to adoption contrary to the wish of the biological parents could only be given in “extraordinary circumstances”. 125. The above case-law was developed further, inter alia, in the Supreme Court ’ s judgment of 20 April 2007 ( Rt. 2007, page 561), after the Court had declared a second application by the applicant in the above ‑ mentioned case of Johansen v. Norway inadmissible (see Johansen v. Norway ( dec. ), 12750/02, 10 October 2002). The Supreme Court reiterated that the requirement that adoption be in the child ’ s best interests, as set out in section 4-20 of the Child Welfare Act (see paragraph 122 above), meant that “strong reasons” ( sterke grunner ) must be present in order for consent to adoption to be given contrary to the wish of the biological parents. In addition, the Supreme Court emphasised that a decision of this kind had to be based on the concrete circumstances of each case, but also take account of general experience, including experience from research into child psychology or child psychiatry. The Supreme Court examined the general principles in the case-law of the Strasbourg Court and concluded that the domestic law was in conformity with those principles: an adoption could only be authorised where “particularly weighty reasons” were present. That case was subsequently brought before the Court, which found no violation of Article 8 of the Convention (see Aune, cited above, § 37, for a recapitulation of the Supreme Court ’ s analysis of the general principles developed in the case-law of the Supreme Court and the Court). 126. The Supreme Court again set out the general principles applicable to adoption cases in a judgment of 30 January 2015 ( Rt. 2015, page 110). It reiterated that forced adoptions had a severe impact and generally inflicted profound emotional pain on the parents. Family ties were protected by Article 8 of the Convention and Article 102 of the Constitution. Adoption was also an intrusive measure for the child and could, under Article 21 of the Convention on the Rights of the Child (see paragraph 134 below), accordingly only be decided when in his or her best interests. However, where there were decisive factors from the child ’ s point of view in favour of adoption, the parents ’ interests would have to yield, as had been provided for in Article 104 of the Constitution and Article 3 § 1 of the Convention on the Rights of the Child (ibid.). Reference was made to Aune, cited above, § 66, where the Court had stated that an adoption could only be authorised where justified by “an overriding requirement pertaining to the child ’ s best interests”, which corresponded to the standard of “particularly weighty reasons” as established by the Supreme Court in the judgment that had been scrutinised by the European Court of Human Rights in Aune (see paragraph 125 above). 127. Parliament had examined, and a majority had supported, a proposal from the Government ( Ot.prp. no. 69 (2008-2009)) discussing the issue of a considerable decline in adoptions in Norway. In the proposal it had been suggested that the child welfare services had developed a reluctance to propose adoptions in the aftermath of the Court ’ s finding of a violation in Johansen, cited above, even though research had shown that it was in a child ’ s best interests to be adopted rather than experience a continuous life in foster care until reaching their majority. The Supreme Court interpreted the proposal as emphasising that the child welfare services should ensure that adoption would actually be proposed where appropriate, but that the proposal did not imply that the legal threshold, under Article 8 of the Convention, had changed. The Supreme Court added that the general information obtained from research on adoption was relevant to the concrete assessment of whether an adoption should be authorised in an individual case. 128. The Supreme Court also examined the implication of amendments of the rules concerning contact between the child and the biological parents, which had been coined as an “open adoption” in the above proposal. The rules had been incorporated into section 4-20a of the Child Welfare Act, which had been in force since 2010. They required that an “open adoption” be in the child ’ s best interests and that the adoptive parents consent (see paragraph 122 above). It observed that the legislature ’ s reasons for introducing the system of “open adoptions” had been to secure the child stable and predictable surroundings in which to grow up, while at the same time ensuring some contact with its biological parents where this would be in the child ’ s best interests. The child would thus have all the benefits of the adoption, while still having contact with its biological parents. The Supreme Court found that the introduction of the system of “open adoptions” had not meant that the legal threshold for authorising adoptions had been lowered. However, in some cases further contact between the child and the biological parents could mitigate some of the arguments against adoption. Reference was made to Aune, cited above, § 78. 129. The Supreme Court considered anew the general principles concerning adoption in a judgment of 11 September 2018. The Supreme Court observed, inter alia, that the European Court of Human Rights, in the case of Mohamed Hasan v. Norway, no. 27496/15, § 148, 26 April 2018, had stressed the strict procedural requirements that must be met by the domestic decision-making authorities in cases concerning adoption. When summarising the subject of its review, the Supreme Court stated that the best interests of the child were the most important and weighty concerns when deciding the adoption issue. As adoption was such a radical and irreversible measure, it could only be justified – from the child ’ s point of view – by particularly weighty reasons. These grounds had to be balanced against the consequences of adoption for the child ’ s contact with its biological parents in the individual case. Where there had been little or no contact between the parents and the child, the concern for protection of their family life would be given less weight than in cases where a more normal family life had existed. 130. The current position in respect of knowledge and research on adopted children had been studied by a court-appointed expert and presented in an appendix to his statement to the Supreme Court. The expert believed that the summary in the Supreme Court ’ s judgment of 20 April 2007 ( Rt. 2007, page 561; see paragraph 125 above) was still accurate. Based on an updated study of relevant research and professional experience as a psychologist, the expert had stated the following in the case at hand: “ Children in long-term foster care who are adopted undergo better psychosocial development than children in a similar situation who are not adopted. It is the durability of the child ’ s sense of belonging that seems to be essential.” 131. The expert had specified in his statement before the Supreme Court that this was a difficult area of research, one of the reasons being that few forced adoptions were carried out annually in Norway. And, as had been emphasised in the Supreme Court ’ s judgment of 20 April 2007 ( Rt. 2007 page 561; see paragraph 125 above), a specific, individual assessment had to be made in each case. But, as emphasised in the same judgment, such a research- and experienced-based perception of what was generally best for the child, had to be given particular weight. Also, the abovementioned (see paragraph 127 ) proposal from the Government ( Ot.prp. no. 69 (2008-2009) ) had stressed that research showed that “ ... for some children, adoption may give a safer and more predictable upbringing than long-term foster care”. C. The Adoption Act 132. The Adoption Act of 28 February 1986, in force at the relevant time, contained the following relevant provisions: Section 2 “An adoption order must only be issued where it can be assumed that the adoption will be to the benefit of the child [( til gagn for barnet )]. It is further required that the person applying for adoption either wishes to foster or has fostered the child, or that there is another special reason for the adoption.” Section 12 “Adoptive parents shall, as soon as is advisable, tell the adopted child that he or she is adopted. When the child has reached 18 years of age, he or she is entitled to be informed by the Ministry [ of Children and Equality] of the identity of his or her biological parents.” Section 13 “On adoption, the adopted child and his or her heirs shall have the same legal status as if the adopted child had been the adoptive parents ’ biological child, unless otherwise provided by section 14 or another statute. At the same time, the child ’ s legal relationship to his or her original family shall cease, unless otherwise provided by special statute. Where one spouse has adopted a child of the other spouse or cohabitant, the said child shall have the same legal status in relation to both spouses as if he or she were their joint child. The same applies to children adopted pursuant to section 5 b, second, third and fourth paragraphs.” Section 14 a. Contact after adoption “In the case of adoptions carried out as a result of decisions pursuant to section 4-20 of the Child Welfare Act, the effects of the adoption that follow from section 13 of the present Act shall apply, subject to any limitations that may have been imposed by a decision pursuant to section 4-20 a of the Child Welfare Act regarding contact between the child and his or her biological parents.” D. The Dispute Act 133. The first paragraph of section 36-4 and the third paragraph of section 36-10 of the Dispute Act of 17 June 2005 ( tvisteloven ) read: Section 36-4 The composition of the court. Expert panel “(1) The district court shall sit with two lay judges, one of whom shall be an ordinary lay judge and the other an expert. In special cases, the court may sit with two professional judges and three lay judges, one or two of whom shall be experts.” Section 36-10 Appeal “(3) An appeal against the judgment of the district court in cases concerning the County Board ’ s decisions pursuant to the Child Welfare Act requires the leave of the court of appeal. Leave can only be granted if a) the appeal concerns issues whose significance extends beyond the scope of the current case, b) there are grounds to rehear the case because new information has emerged, c) the ruling of the district court or the procedure in the district court is seriously flawed [( vesentlige svakheter ved tingrettens avgjørelse eller saksbehandling )], or d) the judgment provides for coercive measures that were not approved by the County Board.” III. RELEVANT INTERNATIONAL LAW MATERIALS A. The United Nations 134. The United Nations Convention on the Rights of the Child, concluded in New York on 20 November 1989, contains, inter alia, the following provisions: Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child ’ s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child ’ s best interests. 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.” Article 18 “1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. 2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children. 3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.” Article 20 “1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child ’ s upbringing and to the child ’ s ethnic, religious, cultural and linguistic background.” Article 21 “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child ’ s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; ...” 135. In its General Comment no. 7 (2005) on implementing child rights in early childhood, the United Nations Committee on the Rights of the Child sought to encourage the States Parties to recognise that young children were holders of all rights enshrined in the Convention on the Rights of the Child and that early childhood was a critical period for the realisation of those rights. In particular, the Committee referred to the best interests of the child: “13. Article 3 sets out the principle that the best interests of the child are a primary consideration in all actions concerning children. By virtue of their relative immaturity, young children are reliant on responsible authorities to assess and represent their rights and best interests in relation to decisions and actions that affect their well-being, while taking account of their views and evolving capacities. The principle of best interests appears repeatedly within the Convention (including in articles 9, 18, 20 and 21, which are most relevant to early childhood). The principle of best interests applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well-being, as well as measures to support and assist parents and others who have day-to-day responsibility for realizing children ’ s rights: (a) Best interests of individual children. All decision-making concerning a child ’ s care, health, education, etc. must take account of the best interests principle, including decisions by parents, professionals and others responsible for children. States parties are urged to make provisions for young children to be represented independently in all legal proceedings by someone who acts for the child ’ s interests, and for children to be heard in all cases where they are capable of expressing their opinions or preferences.” 136. The United Nations Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, mentions the following as elements “to be taken into account when assessing the child ’ s best interests” : “(a) The child ’ s views ... (b) The child ’ s identity ... (c) Preservation of the family environment and maintaining relations ... (d) Care, protection and safety of the child ... (e) Situation of vulnerability ... (f) The child ’ s right to health ... (g) The child ’ s right to education ... ” Under the headings “Balancing the elements in the best-interests assessment” and “Procedural safeguards to guarantee the implementation of the child ’ s best interests”, inter alia, the following is included: “84. In the best-interests assessment, one has to consider that the capacities of the child will evolve. Decision-makers should therefore consider measures that can be revised or adjusted accordingly, instead of making definitive and irreversible decisions. To do this, they should not only assess the physical, emotional, educational and other needs at the specific moment of the decision, but should also consider the possible scenarios of the child ’ s development, and analyse them in the short and long term. In this context, decisions should assess continuity and stability of the child ’ s present and future situation. ... 85. To ensure the correct implementation of the child ’ s right to have his or her best interests taken as a primary consideration, some child-friendly procedural safeguards must be put in place and followed. As such, the concept of the child ’ s best interests is a rule of procedure .... ... 87. States must put in place formal processes, with strict procedural safeguards, designed to assess and determine the child ’ s best interests for decisions affecting the child, including mechanisms for evaluating the results. States must develop transparent and objective processes for all decisions made by legislators, judges or administrative authorities, especially in areas which directly affect the child or children.” B. The Council of Europe 137. The Council of Europe ’ s Revised Convention on the Adoption of Children of 27 November 2008 contains, inter alia, the following provisions: Article 3 – Validity of an adoption “An adoption shall be valid only if it is granted by a court or an administrative authority (hereinafter the ‘ competent authority ’ ).” Article 4 – Granting of an adoption “1. The competent authority shall not grant an adoption unless it is satisfied that the adoption will be in the best interests of the child. 2. In each case the competent authority shall pay particular attention to the importance of the adoption providing the child with a stable and harmonious home.” Article 5 – Consents to an adoption “1. Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place; b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years; c the consent of the spouse or registered partner of the adopter. 2. The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing. 3. The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with. 4. If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent. 5. A mother ’ s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child. 6. For the purposes of this Convention ‘ father ’ and ‘ mother ’ mean the persons who according to law are the parents of the child.” 138. The Council of Europe ’ s Parliamentary Assembly adopted Resolution 2049 on 22 April 2015. The Resolution includes, inter alia, the following: “5. Financial and material poverty should never be the only justification for the removal of a child from parental care, but should be seen as a sign for the need to provide appropriate support to the family. Moreover, showing that a child could be placed in a more beneficial environment for his or her upbringing is not enough to remove a child from his or her parents, and even less of a reason to sever family ties completely. ... 8. The Assembly thus recommends that member States: ... 8.2. put into place laws, regulations and procedures which truly put the best interest of the child first in removal, placement and reunification decisions; 8.3. continue and strengthen their efforts to ensure that all relevant procedures are conducted in a child-friendly manner, and that the children concerned have their views taken into account according to their age and level of maturity; 8.4. make visible and root out the influence of prejudice and discrimination in removal decisions, including by appropriately training all professionals involved; 8.5. support families with the necessary means (including financially, materially, socially and psychologically) in order to avoid unwarranted removal decisions in the first place, and in order to increase the percentage of successful family reunifications after care; 8.6. ensure that any (temporary) placement of a child in alternative care, where it has become necessary as a measure of last resort, be accompanied by measures aimed at the child ’ s subsequent reintegration into the family, including the facilitation of appropriate contact between the child and his or her family, and be subject to periodic review; 8.7. avoid, except in exceptional circumstances provided for in law and subject to effective (timely and comprehensive) judicial review, severing family ties completely, removing children from parental care at birth, basing placement decisions on the effluxion of time, and having recourse to adoptions without parental consent; 8.8. ensure that the personnel involved in removal and placement decisions are guided by appropriate criteria and standards (if possible in a multidisciplinary way), are suitably qualified and regularly trained, have sufficient resources to take decisions in an appropriate time frame, and are not overburdened with too great a caseload; ... 8.10. ensure that, except in urgent cases, initial removal decisions are based only on court orders, in order to avoid unwarranted removal decisions and to prevent biased assessments.” 139. The Council of Europe ’ s Parliamentary Assembly adopted Resolution 2232 (“Striking a balance between the best interest of the child and the need to keep families together”) on 28 June 2018. The Resolution states, inter alia : “4. The Assembly reaffirms that the best interest of the child should be a primary consideration in all actions concerning children, in accordance with the United Nations Convention on the Rights of the Child. However, the implementation of this principle in practice depends on the context and the specific circumstances. It is sometimes easier to say what is not in the best interests of children: coming to serious harm at the hands of their parents, or being removed from a family without good cause. 5. It is with this caveat in mind that the Assembly reiterates the recommendations it made in Resolution 2049 (2015) and recommends that Council of Europe member States focus on the process in order to achieve the best results for children and their families alike. Member States should: ... 5.2. give the necessary support to families in a timely and positive manner with a view to avoiding the necessity for removal decisions in the first place, and to facilitating family reunification when possible and in the child ’ s best interest: this includes the need to build better collaboration with parents, with a view to avoiding possible mistakes based on misunderstandings, stereotyping and discrimination, mistakes which can be difficult to correct later on once the trust has gone; ... 5.5. seek to keep at a minimum the practices of removing children from parental care at birth, basing placement decisions on the effluxion of time, and adoptions without parental consent, and only in extreme cases. Where in the child ’ s best interests, efforts should be made to maintain family ties; 5.6. where the decision to remove a child from their family has been made, ensure that: 5.6.1. such decisions are a proportionate response to a credible and verified assessment by competent authorities subject to judicial review that there is a real risk of actual and serious harm to the children involved; 5.6.2. a detailed decision is provided to the parents and a copy of the decision is also retained, that the decision is explained in an age-appropriate way to the child or that the child is otherwise granted access to the decision, and that the determination outlines the circumstances that led to the decision and provides reasons for the removal; 5.6.3. removing children is a last resort and should be done only for the necessary period of time; 5.6.4. siblings are kept together in care in all cases where it is not against the best interest of the child; 5.6.5. as long as it is in the best interest of the child, children are cared for within the wider family unit so as to minimise the disruption of family bonds for the children involved; 5.6.6. regular consideration is given to family reunification and/or family access as is appropriate taking into account the best interests and views of the child; 5.6.7. visitation and contact arrangements facilitate the maintenance of the family bond and work towards reunification unless manifestly inappropriate;” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 140. The applicants complained that the refusal to discontinue the public care of X and the deprivation of the first applicant ’ s parental responsibilities for him and the authorisation granted to his foster parents to adopt him had violated their right to respect for family life as guaranteed by Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 141. The Government contested that submission. A. Preliminary issues before the Grand Chamber 1. Scope of the case before the Grand Chamber (a) Temporal scope ( i ) The parties ’ submissions 142. The Government maintained that it fell outside the Grand Chamber ’ s jurisdiction to consider whether the domestic proceedings relating to the taking into care of X and the first applicant ’ s contact rights –prior to those relating to the authorisation of adoption – had complied with Article 8 of the Convention. Contrary to the requirements in Article 35 § 1 of the Convention, the applicants had failed to exhaust domestic remedies and to comply with the six - month time-limit with respect to the emergency care order of 17 October 2008, the care order of 2 March 2009 and the decisions on contact rights. In any event, the application to the Court of 12 April 2013 had been directed only at the measures upheld by the Supreme Court decision of 15 October 2012, that is, the removal of parental responsibilities and authorisation of adoption. The Chamber minority had overstepped the Court ’ s competence and disregarded the scope of the applicants ’ application in order to voice abstract criticism against an entire child welfare system. It was not open to the applicants to expand the case through their referral request to the Grand Chamber. While the latter could have regard to prior proceedings, this was only to the extent that they had been referred to and relied upon in the decision relating to the removal of parental responsibilities and the authorisation of adoption. 143. Disagreeing with the Government ’ s position, the applicants submitted that the Grand Chamber had competence to examine not only the removal of parental responsibilities and the authorisation of adoption but also the initial emergency decisions, the decisions relating to X ’ s being taken into public care and those relating to the first applicant ’ s contact rights. Its jurisdiction comprised the entirety of the domestic proceedings – even if it were ultimately to find a violation only in respect of a part of these. The consent to adoption had to be considered as the final decision in a sequence of events that had started with the emergency decision. The decision to remove parental responsibilities and to authorise adoption had been a consequence of the lack of attachment between X and the first applicant, which in turn had been a direct result of the decisions of 2 March 2009 and 22 April 2010 on long-term public care, in which the first applicant ’ s contact rights had been considerably and unjustifiably reduced. (ii) The Court ’ s considerations 144. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber ’ s decision on admissibility. This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber (see, for example, Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 100, 4 December 2018). In the present case, the Grand Chamber notes that the Chamber declared admissible the complaint lodged by the applicants (see paragraph 2 above), which concerned the deprivation of parental responsibilities and authorisation of adoption first decided by the County Social Welfare Board on 8 December 2011 and then upheld on appeal (see, inter alia, paragraphs 3, 76, 93, 94 and 111 of the Chamber ’ s judgment). 145. The Grand Chamber observes that X was taken into emergency foster care in 2008 (see paragraphs 20-22 above) and into ordinary foster care following the decision of the County Social Welfare Board of 2 March 2009 (see paragraphs 38-46 above). In the same decision the first applicant was granted limited contact rights (see paragraphs 42 - 46 above). She appealed against that decision, which was ultimately upheld by the High Court in its judgment of 22 April 2010 (see paragraphs 65-75 above), again granting the first applicant limited contact rights (see paragraph 75 above). As the applicant did not avail herself of the possibility of lodging an appeal, the High Court ’ s judgment became final on the expiry of the time ‑ limit for doing so. 146. In their request for referral to the Grand Chamber, the applicants sought to expand their complaints to encompass also the above proceedings from 2008 to 2010. These grievances did not, however, form part of their application as it was declared admissible by the Chamber. They were in any event filed for the first time before the Grand Chamber more than six months after the last domestic decisions taken in the proceedings in question and, as mentioned above (see paragraph 145), without domestic remedies having been exhausted in the most recent of these. 147. Consequently, the Court does not have jurisdiction to review the compatibility with Article 8 of the Convention of the proceedings, including those relating to the restrictions on contact rights, that predated or ended with the High Court ’ s judgment of 22 April 2010 (see paragraph 76 above). 148. Nonetheless, in its review of the proceedings relating to the County Social Welfare Board ’ s decision of 8 December 2011 and the decisions taken on appeal against that decision, notably the City Court ’ s judgment of 22 February 2012, the Court will have to put those proceedings and decisions in context, which inevitably means that it must to some degree have regard to the former proceedings and decisions (see, similarly, for example, Jovanovic v. Sweden, no. 10592/12, § 73, 22 October 2015, and Mohamed Hasan, cited above, § 151). (b) Material scope 149. The Court observes that the applicants ’ application lodged with the Court on 12 April 2013 expressly targeted only the decision to withdraw the first applicant ’ s parental responsibilities in respect of X and to authorise the latter ’ s adoption by his foster parents (see the City Court ’ s decision in paragraphs 107-12 above), not the concurrent conclusion reached on the same occasion that the conditions for lifting the care order concerning X had not been met (see paragraphs 99-106 above). 150. The Chamber considered that the decision not to lift the care order was nonetheless intrinsically related to the decision to deprive the first applicant of her parental responsibilities for X and to authorise the latter ’ s adoption, and accordingly reviewed the former decision on the merits (see paragraphs 113 - 17 of the Chamber ’ s judgment) regardless of the applicants ’ having focused expressly on the latter decision in their application and submissions before the Chamber. 151. The Grand Chamber notes that, while the respondent Government did not express disagreement with the Chamber ’ s approach in this regard, the applicants made submissions before it indicating that their complaint also encompassed the decision not to lift the care order taken in the same proceedings. 152. The Grand Chamber observes that the refusal to lift the public care order is so closely related to and intertwined with the decision to remove the first applicant ’ s parental responsibilities and to authorise adoption that it must be considered to be an aspect of her initial complaint to the Court. Indeed, as follows from the terms of section 4-20 of the Child Welfare Act (see paragraph 122 above), it was a prerequisite for application of that provision that public care continued to be justified. The Grand Chamber will therefore, as was done by the Chamber, include the decision not to lift the care order in its examination of whether the applicants ’ Article 8 rights have been violated. 2. The first applicant ’ s standing to lodge a complaint on behalf of the second applicant (a) The Chamber ’ s judgment 153. The Chamber, emphasising that the complaint concerned the decision to deprive the first applicant of her parental responsibilities for X and to authorise his adoption – which resulted in the former losing legal guardianship over X – rather than facts subsequent to that decision, concluded that the first applicant was competent to lodge a complaint on behalf of the second applicant, X. (b ) The parties ’ submissions 154. By way of preliminary objection before the Grand Chamber, the Government argued that the first applicant did not have standing to lodge an application on behalf of X. His adoptive parents would have had standing, but had not done so. The Court ’ s acceptance of the mother ’ s lodging of an application on her child ’ s behalf in Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000 ‑ VIII, had been due to the particular circumstances of that case. In the instant case X ’ s interests were also represented by his adoptive parents, who had intervened before the Court. 155. The applicants submitted that, according to the Court ’ s established case law, a biological parent whose parental responsibilities had been withdrawn could submit a complaint against that withdrawal on behalf of the child in question. The first applicant accordingly had an unquestionable right to represent X in the instant case. ( c ) The Court ’ s considerations 156. The Court observes that the disputed deprivation of parental responsibilities and the authorisation of adoption decided by the County Social Welfare Board on 8 December 2011 and upheld by the City Court on 22 February 2012, against which leave to appeal was refused by the appellate courts, undoubtedly led to the severance of the legal ties between the first and second applicants. The Court has held that this factor is not decisive for whether a parent may have locus standi to lodge an application on behalf of the child before the Court (see, for example, A.K. and L. v. Croatia, no. 37956/11, § 46, 8 January 2013). In that judgment, the Court further stated: “ ... The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142). 47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no. 310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense ( P.C. and S. v. the United Kingdom ( dec. ), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided” ( ibid., § 46-47). 157. Since X was adopted, his only representatives under national law in respect of any issues concerning facts that occurred after the adoption had become final would be his adoptive parents. However, in respect of the adoption proceedings, conducted at a time when the first applicant still had full responsibilities for X, according to the Court ’ s case-law, it is in principle in a child ’ s interests to preserve family ties, save where weighty reasons exist to justify severing those ties (see, for example, A.K. and L. v. Croatia, cited above, § 49 ). In addition, on several occasions the Court has accepted in the context of Article 8 of the Convention that parents who did not have parental rights could apply to it on behalf of their minor children (see Scozzari and Giunta, cited above, §§ 138 ‑ 39 ), the key criterion for the Court in these cases being the risk that some of the children ’ s interests might not be brought to its attention and that they would be denied effective protection of their Convention rights (see mutatis mutandis, Lambert and Others v. France [GC], no. 46043/14, § 9 4, ECHR 2015 (extracts) ). 158. Where an application has been lodged before it by a biological parent on behalf of his or her child, the situation may nonetheless be that the Court identifies conflicting interests between parent and child. A conflict of interest is relevant to the question of whether an application lodged by one person on behalf of another is admissible (see, for example, Kruškić v. Croatia ( dec. ), no. 10140/13, §§ 101- 02, 25 November 2014). The Government have objected on such grounds in the instant case. 159. The Court considers that the question of a possible conflict of interest between the first and second applicants overlaps and is closely intertwined with those which it is called upon to examine when dealing with the complaint, formulated by the first applicant on her own behalf and on behalf of the second applicant, of violations of their right to respect for family life under Article 8. It discerns no such conflict of interest in the present case as would require it to dismiss the first applicant ’ s application on behalf of the second applicant. Accordingly, the Government ’ s objection must be dismissed. B. Merits 1. The Chamber ’ s judgment 160. The Chamber was satisfied that the domestic proceedings complained of were in accordance with 1992 Child Welfare Act and pursued the legitimate aims of “the protection of health or morals” and the “rights and freedoms” of X in accordance with Article 8 § 2 of the Convention. As to the further question whether the disputed interference was also “necessary”, the Chamber considered that the first applicant had been fully involved in the domestic proceedings, seen as a whole, and that the domestic decision-making process had been fair and capable of safeguarding the applicants ’ rights under Article 8. The majority of the Chamber further observed that the City Court had been faced with the difficult and sensitive task of striking a fair balance between the relevant competing interests in a complex case. In the majority ’ s view, the City Court had clearly been guided by the interests of X, notably his particular need for security in his foster-home environment, given his psychological vulnerability. Also taking into account the City Court ’ s conclusion that there had been no positive development in the first applicant ’ s competence in contact situations throughout the three years in which she had had contact rights and the fact that the domestic authorities had had the benefit of direct contact with all the persons concerned, the majority of the Chamber found that there were such exceptional circumstances in the present case as could justify the measures in question and that the domestic authorities had been motivated by an overriding requirement pertaining to X ’ s best interests. 2. The parties ’ submissions (a) The applicants 161. The applicants submitted that in its judgment the Chamber had failed to take account of the particular context concerning Norway, namely that there was widespread criticism both nationally and internationally of the Norwegian child welfare system, indicating a serious systemic problem. 162. Under the Court ’ s case-law, the margin - of - appreciation concept was, in the applicants ’ opinion, characterised by its casuistic nature. The margin to be accorded to the competent national authorities would vary in the light of the nature of the issues and the seriousness of the interests at stake. It was well established that in cases relating to placement of children in public care and adoption, the domestic authorities enjoyed a wide margin of appreciation. However, the Court tended to hide behind the margin - of - appreciation concept in a way which could to some extent undermine its control and functions. 163. Given the nature and seriousness of the interference at stake, the margin of appreciation ought to have been particularly narrow even in regard to the first child - welfare measures that had been taken. The Chamber majority had, moreover, not addressed the grounds for the extremely limited contact rights that had been granted from the beginning. 164. It was clearly established in the Court ’ s case-law that the protection of the biological family was a priority. The instant case concerned a very young child; in such cases the authorities could act only on extraordinarily compelling grounds. X ’ s particular vulnerability referred to by the domestic authorities in their decisions had never been supported by concrete and tangible evidence. Nor had his special care needs ever been explained, as pointed out by the minority in the Chamber. 165. Contact rights in Norway were notably restrictive and had been denounced by the Court in several cases. Considering that limited contact rights had a particularly detrimental impact in the first weeks, months and years of an infant ’ s life, the facts of the instant case were particularly shocking. The first applicant ’ s contact rights had been drastically limited without objective reasons and over a very short space of time. The imposition of extremely restricted access rights had destroyed any chance of family reunification and had made it impossible for X to forge natural bonds with the first applicant. Since the domestic authorities were directly responsible for the family breakdown, the argument that X had had no psychological bonds with his mother was unacceptable. 166. There had been a conflict between the first applicant, the foster mother and the child welfare services; a conflict of that nature was hardly exceptional and was readily understandable. The authorities had done absolutely nothing to pacify the first applicant ’ s relations with the authorities and the foster mother. On the contrary, the foster mother had been present during all contact sessions, even though this had not been ordered or permitted by any of the domestic decisions. The positive obligation incumbent on the authorities under Article 8 of the Convention required that they proposed altering the terms of the contact rights or took decisions to that effect. The County Social Welfare Board and the City Court had focused only on the short-term consequences of a separation of X from his foster parents and had failed to consider the long-term impact on him of a permanent separation from his biological mother. The domestic authorities should have resorted to less intrusive measures. 167. The domestic authorities had not dealt with the case in good faith, quite the contrary. The alleged lack of caring skills on the part of the first applicant was firmly contradicted by the case-material. She could not be blamed for having asked the same questions several times when at the parent-child institution, and the institution ’ s staff had threatened her with taking X into public care. While the expert reports contained global formulas such as “a severe lack of the abilities that are required in the mothering role”, “problems with emotional regulation” and “inadequate basic parent skills”, these had not been substantiated. There had been no concrete and tangible evidence to justify the alleged fundamental limitations of the first applicant and her caring skills. 168. Old and new research on infant attachment suggested that the domestic authorities had failed to abide by basic and fundamental attachment principles to support reunification. They had not proved that returning X to the first applicant would cause him serious problems. (b) The Government 169. Overall, the Government invited the Grand Chamber to follow the approach of the Chamber majority, which had been correct and exemplary both in interpretation and application of Convention law. In contrast, they cautioned against the Chamber minority ’ s attempt to carry out a “forensic examination of the facts” : reassessing facts that had been established by the national courts many years ago risked making the review arbitrary and was contrary to the Court ’ s fourth - instance doctrine. 170. The Government argued that the domestic decision-making process had been fair and capable of safeguarding the applicants ’ rights under Article 8 of the Convention. The case had been reviewed independently and impartially by several levels of court. 171. The child ’ s best interests, which had changed over time, were paramount. The first applicant sought to assert her right to family life, but although she had submitted a claim that had to be assessed under Article 8 of the Convention, it was in essence not so much a claim for the protection of existing “family life”, as an assertion of a biological right even under circumstances involving little or no actual attachment. The second applicant, X, also had a right under Article 8 to have his family life protected. The question therefore arose as to whether his “family life” consisted of his biological ties to the first applicant or of the only family life that he had known, namely with the persons who had assumed care for him since he was three weeks old and who, in his mind, were his actual parents. 172. The case involved competing interests, but there was no consensus among the Contracting States as to the extent to which public authorities could interfere with family life in the interests of the well-being of a child, which suggested that they should be accorded a wider margin of appreciation. In the case under consideration, the reasons given by the domestic authorities for the impugned decisions had been relevant and sufficient. X had been subjected to very serious neglect during the first weeks of his life. The first applicant had subsequently failed to show any development with regard to her approach to him. X was vulnerable to a repetition of the same pattern of disturbances and reactions. If his care needs were not met, there was a risk of retraumatisation and a reversal of positive development with regard to his functioning. The first applicant had continued to appear “completely devoid of any such empathy and understanding” that would be called for should X be returned to her. 173. The domestic authorities had complied with their positive obligations. The first applicant had not accepted help from the child welfare services. The authorities had also taken note of her recent marriage and second child, but those developments had not been sufficient to outweigh the necessity of the impugned measures. The Chamber minority had erroneously assumed that the inquiry made by the child welfare services in the municipality to which the first applicant had moved had disclosed “no shortcomings”. 174. The Chamber minority had disregarded Article 35 § 1 of the Convention and had “ reopened ” earlier cases. In doing so, the minority had wrongfully applied the standard of a “stricter scrutiny”, not merely to the adoption decision, but also to the prior decisions relating to the taking into care of X. In addition, the minority had erred with respect to the facts. There had been a previous order awarding the minimum legal contact rights; further contact had not been precluded had this been in X ’ s best interest. However, three experts had concluded that there had been no positive development whatsoever in the relationship between X and the first applicant. Rather than availing herself of the supportive measures, the first applicant had continued to use the contact sessions as an arena for cultivating her opinion that she had been a victim of injustice, instead of focusing on X. It had been primarily in the first applicant ’ s and her family ’ s view that there had been a “conflict” between the first applicant, the child welfare services and the foster mother. 175. In short, the circumstances had been exceptional and the impugned decisions had clearly been motivated by an overriding requirement pertaining to X ’ s best interests. The City Court had succeeded in its difficult and sensitive task of striking a fair balance between the relevant competing interests in a complex case. 3. Third-party comments (a) The Government of Belgium 176. The Government of Belgium stated that, while perceptions varied as to what manner of intervention with respect to child welfare was appropriate, Belgian legislation did not allow for adoption contrary to the biological parents ’ wishes. They further submitted that domestic authorities in cases such as the present one had to balance the best interests of the child against the interests of the biological parents. The Belgian Government went on to express a number of considerations as to the facts as they had been restated in the Chamber judgment, and highlighted that these differed from those in the case of Aune, cited above. (b) The Government of Bulgaria 177. The Government of Bulgaria submitted that the child welfare case should be reviewed in its entirety because earlier decisions such as on placement in care and contact rights were intrinsically linked to the adoption proceedings. The Contracting Parties had a wide margin of appreciation when deciding on placement in public care, but a stricter scrutiny was called for in respect of any further limitations. When further limitations were involved, the Court was called upon not only to examine the procedural aspects of the decision-making process, but to go beyond the form, if necessary, and assess the substance of the case. Furthermore, the Bulgarian Government emphasised the positive duty to make concrete efforts to facilitate family reunification as soon as reasonably feasible and stressed that it was not enough to show that a child could be placed in a more beneficial environment for his upbringing. ( c ) The Government of the Czech Republic 178. The Government of the Czech Republic focused mainly on the approach of the respective authorities after emergency or permanent placements of children in foster care, since, they submitted, immediate active work with the biological families after the placement as well as the frequency of contact between the children and their biological parents appeared to be crucial factors in maintaining original family ties. 179. They further stressed that when assessing the compliance of authorities with their obligations under Article 8 of the Convention, the situation of all members of the family must be taken into account. There was a broad consensus, including in international law, that in all decisions concerning children, their best interests must be paramount. However, the “best interests” principle was not designed to be a kind of “trump card”. Article 8 covered both the best interests of the child and the right of the parents to be assisted by the State in staying or being reunited with their children. The child welfare systems should not disregard the existence of the biological parents ’ rights, which should be duly taken into account and balanced against the best interests of the child, rather than minimised to the point of being ignored. 180. In addition, the Government of the Czech Republic emphasised the importance of contact between biological parents and their child in public care and other measures to reunite the family, inter alia, in order to ensure that a taking into care remained a temporary measure: restrictions on contact could be the starting point of the child ’ s alienation from his or her biological family and, thus, of the impossibility for the family to reunite. In order for the effort to reunite the family to be serious, contact would have to occur several times a week, even under supervision or with assistance, and increase in time up to daily visits. If that were the case, it would be possible to talk about a slow establishment of a bond between the child and their biological parents. Speedy procedures were also required. 181. As to adoption, they maintained that the Court must strike a balance between the rights of the biological and the adoptive parents. The best interests of the child had to be assessed on an ad hoc basis that sometimes conflicted with other interests involved: there were other rights that had to be taken into account when determining whether or not a child should be considered adoptable. ( d ) The Government of Denmark 182. The Government of Denmark argued that the domestic authorities had made a comprehensive and thorough evaluation of the matter, and the Court ’ s assessment should be limited to an assessment of the decision-making process. The Court should not, as had the Chamber minority, carry out a “forensic examination of the facts” and substitute its own assessment for that of the domestic courts, who had undertaken a balancing exercise in conformity with the criteria laid down in Article 8 of the Convention and the Court ’ s jurisprudence. 183. The Chamber majority had made a correct assessment of the matter and there were no strong reasons why the Court should reassess the facts of the case as a fourth-instance tribunal several years after the incidents and based on documentary evidence presented to the Court. Reference was made to paragraph 28(c) of the Copenhagen Declaration. By expressing a dissenting opinion implying an entirely new assessment, the Chamber minority had attempted to don the mantle of a fourth-instance tribunal. The domestic authorities had clearly demonstrated that they had made a thorough assessment of the matter comprising a comprehensive balancing of opposing interests and had shown an understanding of the fact that the case concerned far-reaching intrusions into family and private life, and had also taken into account Article 8 of the Convention and loyally applied the criteria laid down in the Court ’ s jurisprudence. (e) The Government of Italy 184. The Government of Italy submitted that the first applicant ’ s interests did not necessarily align with those of X. If the Court wanted to ensure that X ’ s interests were looked after, it could indicate to the respondent Government that counsel should be appointed for him. Moreover, the Italian Government argued that the decisions taken prior to that concerning X ’ s adoption had become final and if the Court were to re ‑ examine them now in connection with the complaint against the adoption decision, this would run counter to Article 35 of the Convention. Those prior decisions were only facts and ought to be treated as such. 185. In addition, the Italian Government emphasised that there was no European consensus on the topic of protecting parents and children ’ s rights to respect for their family life; the Contracting Parties had a wide margin of appreciation. There were examples in the Court ’ s jurisprudence of cases that had been approached in contradiction to the general principles usually set out by the Court, cases where the Court had taken on a fourth - instance role and examined whether there existed circumstances justifying the removal of the child – which was linked to the idea of a “forensic examination of the facts” mentioned in the dissenting opinion in the Chamber judgment – as well as cases in which the Court had assumed that the best interests of the child coincided with those of his or her biological parents. 186. As to the best interests of the child, the Italian Government emphasised that in the relevant international materials a child was considered to be neglected when the parents did not maintain the necessary relations for his or her upbringing or development, or provide psychological and material assistance. In that connection the Italian Government raised issues with long-term care; children in care lived in limbo between biological parents and substitute carers, with resulting problems such as loyalty conflicts. References were made to Barnea and Caldararu v. Italy, no. 37931/15, 22 June 2017 and Paradiso and Campanelli v. Italy [GC], no. 25358/12, 24 January 2017. Specialists and experts had emphasised that it was not a rule that biological family ties should be preserved, and that should only be the case where it represented a benefit to the child in the specific case. Only the national decision-makers could carry out the necessary assessment of that individual question. The Court did not have the necessary tools to be a fourth - instance tribunal and carry out a “forensic examination of the facts”. ( f ) The Government of Slovakia 187. The Government of Slovakia submitted that the Court ’ s case-law was perfectly clear in that it primarily protected the biological family. Placing a child in foster care was an extreme measure and domestic authorities were required to adopt other measures if such were able to achieve the pursued aim. In particular, where a decision had been explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established. Simultaneously, taking a child into care should be regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and any measure of implementation should be consistent with the ultimate aim of reuniting the natural parent with his or her child. 188. The Slovakian Government made further comments on a case in which Slovak citizens had been affected by child welfare measures and on international concern about child welfare measures adopted in the respondent State. (g) The Government of the United Kingdom 189. The Government of the United Kingdom submitted that in cases such as the present the Court ought in principle to focus on the adequacy of the procedures and sufficiency of the reasons adopted by the domestic authorities, rather than undertake a de novo analysis of the facts. 190. The Court had enumerated a number of identifiable factors that were likely to be relevant in a case such as the present. The UK Government noted, in particular, that permanency was an inherent part of any adoption decision, and that a balancing of interests was required, but guided by the paramountcy of the best interests of the child. The child ’ s bonds to his or her de facto family were therefore to be considered, and Article 8 of the Convention did not require that domestic authorities make endless attempts at family reunification. 191. With respect to subsidiarity, the UK Government pointed to paragraph 28 of the Copenhagen Declaration. In cases such as the present, account should be taken of the relative expertise and involvement of the domestic authorities compared with the Court, the level of participation of the parties affected by the domestic process, and the level of consensus amongst Contracting States. The seriousness of the intervention at issue was also relevant, but a closer scrutiny could not entail a fresh assessment of the facts and particularly not if considerable time had elapsed since the decision under review. The Chamber minority could be understood as seeking to establish that the Court should undertake its own assessment of the underlying facts, rather than reviewing the decisions, particularly by its reference to the need for “a forensic examination of the facts” and by indications that the dissenting judges envisaged that the Court itself should render a “substantive” decision. The Grand Chamber was invited to reject this approach; as had been stated by the Chamber majority, the Court was required to consider whether the domestic authorities had adduced relevant and sufficient reasons for their decisions, but only the domestic authorities were in a position to determine what was in the child ’ s best interests. (h) ADF International 192. ADF International submitted that family was internationally recognised as the fundamental group of society and of particular importance to children. According to the Court ’ s case-law, the Contracting Parties were required to organise their child welfare services in a manner aimed at facilitating family reunification, unless there was clear evidence of danger to the child ’ s welfare. Furthermore, ADF International emphasised the duty to maintain contact between parents and children and to provide practical assistance to families. ( i ) The AIMMF 193. The AIMMF emphasised the importance of personal participation of the natural parent, with legal assistance, before the domestic authorities, as had been the case for the first applicant. In addition to making some comments on the emergency decision, the organisation also highlighted the need for the child to have legal assistance in order to ensure that his or her best interests be protected. 194. Furthermore, the AIMMF submitted that the multi-disciplinary composition of the County Social Welfare Board and the City Court was a particularly important aspect that had also been highlighted by the Court in Paradiso and Campanelli, cited above, § 212. Decision-makers with multi ‑ disciplinary competences formed a crucial aspect of a justice system adapted for children. 195. Moreover, the organisation emphasised the importance of bearing in mind that this case concerned X specifically, and solutions had to be found for him in the light of his vulnerability and history, including the experiences with contact sessions and his ties to the foster parents. Based on the Chamber judgment, the Chamber majority had shown a greater understanding of X ’ s needs than what was reflected in the dissenting opinion. It was precisely on the basis of X ’ s individual circumstances and history that the domestic authorities had arrived at the conclusion that it was in his best interests to strengthen his relations with the foster parents. (j) The AIRE Centre 196. The AIRE Centre invited the Court to reiterate that the Convention was a “living instrument” and that the evolving nature of children ’ s rights under the Convention on the Rights of the Child had to be taken into account. 197. As to the assessment of the child ’ s best interests, the organisation emphasised the importance of family unity and the child ’ s right to be heard, as protected by Article 12 of the Convention on the Rights of the Child. With respect to the thresholds for removal and adoption of a child, the organisation reiterated the principles relevant to the questions of necessity and proportionality. It further pointed to the need for both legal certainty and flexibility, and highlighted “ adoption simple ” or long-term fostering as alternatives to a “closed” adoption. While it could be that in very exceptional circumstances it would not be in a child ’ s best interests to retain contact with the birth parents (for example, when those parents had been operating a paedophile ring or engaging in child trafficking or serial child abuse), this conclusion should not flow automatically from the decision that the child needed a stable, permanent home that was not with the birth parents. 198. The AIRE Centre further submitted that children of parents with intellectual disabilities were commonly taken away as infants, with neglect such as slow weight gain, general failure to thrive, and lack of understanding of children ’ s needs, as the primary concern. Parents with intellectual disabilities had the right to support and, inter alia, General Comment No. 14 (2013) to the Convention on the Rights of the Child stressed this positive obligation. (k) The adoptive parents 199. X ’ s adoptive parents submitted that his representation before the Court raised a crucial question in the case. The principle of the best interests of the child had also to be applied to the procedural rules of representation. Under the Court ’ s case-law, the rules relating to representation of children had been flexible and applied so as to ensure that all relevant interests would be brought to the Court ’ s attention. Allowing the natural parents to represent a child who had a protected family life with foster or adoptive parents did not ensure an effective protection of the child ’ s rights under the Convention. 200. According to the Court ’ s case-law, “family life” was essentially a question of fact. Striking a fair balance between the public interest and the many different private interests at play had been emphasised by the Court as particularly important in a case where the child had developed family ties with two different families. Reference was made to, inter alia, Moretti and Benedetti v. Italy, no. 16318/07, 27 April 2010. Due regard also had to be given to other ties that had formed, for instance with siblings. 201. Furthermore, the Court ’ s case-law had established the principle of the best interests of the child as the paramount consideration and the decisive factor in cases relating to the placement in public care and adoption of children. The Grand Chamber should seek to combine the case-law concerning family life between the child and the foster parents and that concerning the paramountcy of the best interests of the child in the instant case. 4. The Court ’ s considerations (a) General principles 202. The first paragraph of Article 8 of the Convention guarantees to everyone the right to respect for his or her family life. As is well established in the Court ’ s case-law, the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by this provision. Any such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that is or are legitimate under its second paragraph and can be regarded as “necessary in a democratic society” (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001 ‑ VII; and Johansen, cited above, § 52). 203. In determining whether the latter condition was fulfilled, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Paradiso and Campanelli, cited above, § 179). The notion of necessity further implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests ( ibid., § 181). 204. In so far as the family life of a child is concerned, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see, among other authorities, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010). Indeed, the Court has emphasised that in cases involving the care of children and contact restrictions, the child ’ s interests must come before all other considerations (see Jovanovic, cited above, § 77, and Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX ). 205. At the same time, it should be noted that regard for family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8. Accordingly, in the case of imposition of public care restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible ( K. and T. v. Finland, cited above, § 178). 206. In instances where the respective interests of a child and those of the parents come into conflict, Article 8 requires that the domestic authorities should strike a fair balance between those interests and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents (see, for instance, Sommerfeld v. Germany [GC], no. 31871/96, § 64, ECHR 2003 ‑ VIII (extracts)), and the references therein). 207. Generally, the best interests of the child dictate, on the one hand, that the child ’ s ties with its family must be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see Gnahoré, cited above, § 59). On the other hand, it is clearly also in the child ’ s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development (see, among many other authorities, Neulinger and Shuruk, cited above, § 136; Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000-VIII; and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006). An important international consensus exists to the effect that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child ( see Article 9 § 1 of the United Nations Convention on the Rights of the Child, recited in paragraph 134 above ). In addition, it is incumbent on the Contracting States to put in place practical and effective procedural safeguards for the protection of the best interests of the child and to ensure their implementation (see the United Nations Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, paragraphs 85 and 87, quoted at paragraph 136 above). 208. Another guiding principle is that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child ( see, for instance, Olsson v. Sweden (no. 1), 24 March 1988, § 81, Series A no. 130). The above - mentioned positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child (see, for example, K. and T. v. Finland, cited above, § 178). In this type of case the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live (see, inter alia, S.H. v. Italy, no. 52557/14, § 42, 13 October 2015). Thus, where the authorities are responsible for a situation of family breakdown because they have failed in their above-mentioned obligation, they may not base a decision to authorise adoption on the grounds of the absence of bonds between the parents and the child ( see Pontes v. Portugal, no. 19554/09, §§ 92 and 99, 10 April 2012). Furthermore, the ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other (see Scozzari and Giunta, cited above, § 174; and Olsson ( No. 1), cited above, § 81). However, when a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited ( see K. and T. v. Finland, cited above, § 155). 209. As regards replacing a foster home arrangement with a more far-reaching measure such as deprivation of parental responsibilities and authorisation of adoption, with the consequence that the applicants ’ legal ties with the child are definitively severed, it is to be reiterated that “such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child ’ s best interests” (see, for example, Johansen, cited above, § 78, and Aune, cited above, § 66). It is in the very nature of adoption that no real prospects for rehabilitation or family reunification exist and that it is instead in the child ’ s best interests that he or she be placed permanently in a new family ( see R. and H. v. the United Kingdom, no. 35348/06, § 88, 31 May 2011). 210. In determining whether the reasons for the impugned measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 of the Convention, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the care of children and the rights of parents whose children have been taken into public care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for example, K. and T. v. Finland, cited above, § 154; and Johansen, cited above, § 64). 211. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit. The Court thus recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care (see, for example, K. and T. v. Finland, cited above, § 15 5; and Johansen, cited above, § 64). However, this margin is not unfettered. For example, the Court has in certain instances attached weight to whether the authorities, before taking a child into public care, had first attempted to take less drastic measures, such as supportive or preventive ones, and whether these had proved unsuccessful (see, for example, Olsson (no. 1), cited above, §§ 72-74; R.M.S. v. Spain, no. 28775/12, § 86, 18 June 2013, § 86; and Kutzner v. Germany, no. 46544/99, § 75, ECHR 2002 ‑ I ). A stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K. and T. v. Finland, cited above, ibid., and Johansen, cited above, ibid.). 212. In cases relating to public - care measures, the Court will further have regard to the authorities ’ decision-making process, to determine whether it has been conducted such as to secure that the views and interests of the natural parents are made known to and duly taken into account by the authorities and that they are able to exercise in due time any remedies available to them (see, for instance, W. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121, and Elsholz, cited above, § 52). What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see, for example, W. v. the United Kingdom, cited above, § 64; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001 ‑ V (extracts); Neulinger and Shuruk, cited above, § 139; and Y.C. v. the United Kingdom, no. 4547/10, § 138, 13 March 2012). From the foregoing considerations it follows that natural parents ’ exercise of judicial remedies with a view to obtaining family reunification with their child cannot as such be held against them. In addition, in cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. Equally, effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere effluxion of time (see W. v. the United Kingdom. , cited above, § 65). 213. Whether the decision-making process sufficiently protected a parent ’ s interests depends on the particular circumstances of each case (see, for example, Sommerfeld, cited above, § 68 ). With a view to its examination of the present instance, the Court observes that in the aforementioned case it was called upon to examine the issue of ordering a psychological report on the possibilities of establishing contact between the child and the applicant. It observed that as a general rule it was for the national courts to assess the evidence before them, including the means to ascertain the relevant facts (see Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235 ‑ B ). It would be going too far to say that domestic courts are always required to involve a psychological expert on the issue of awarding contact to a parent not having custody, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned (see Sommerfeld, cited above, § 71). ( b ) Application of those principles to the present case 214. It is common ground between the parties, and the Court finds it unequivocally established, that the impugned decisions taken in the proceedings instituted by the first applicant on 29 April 2011 (see paragraph 81 above), starting with the Board ’ s decision of 8 December 2011 and ending with the Supreme Court Appeals Board ’ s decision of 15 October 2012, entailed an interference with the applicants ’ right to respect for their family life under the first paragraph of Article 8. It is further undisputed that they were taken in accordance with the law, namely the Child Welfare Act (see paragraph 122 above), and pursued legitimate aims, namely the “protection of health or morals” and “rights and freedoms” of X. The Court sees no reason to hold otherwise. The interference thus fulfilled two of the three conditions of justification envisaged by the second paragraph of Article 8. The dispute in the present case relates to the third condition: whether the interference was “necessary in a democratic society”. 215. Bearing in mind the limitations on the scope of its examination as described in paragraphs 147 to 148 above, the Court will centre its examination on the City Court ’ s review as reflected in its judgment of 22 February 2012, which ultimately gained legal force on 15 October 2012 when the Supreme Court Appeals Board dismissed the first applicant ’ s appeal (see paragraphs 98-113, 118 and 121 above). 216. At the outset the Court notes that the City Court ’ s bench was composed of a professional judge, a lay person and a psychologist. It held a three-day hearing that the first applicant attended together with her legal - aid counsel and in which twenty-one witnesses, including experts, gave testimony (see paragraph 98 above ). In addition, the Court notes that the City Court acted as an appeal instance and that proceedings similar to those before that court had previously been conducted, and similarly extensive reasons given, by the County Social Welfare Board, which had also had a composition similar to that of the City Court (see paragraphs 89-95 above). The City Court ’ s judgment was subject to review in leave - to - appeal proceedings before the High Court (see paragraphs 114-18 above), which were in turn examined by the Supreme Court Appeals Board (see paragraphs 119-21 above). 217. In its judgment the City Court decided not to lift the care order for X, to deprive the first applicant of her parental responsibilities for him and to authorise his adoption by his foster parents, in accordance with sections 4-21 and 4-20 of the Child Welfare Act respectively (see paragraph 122 above). While observing that the City Court relied on several grounds in order to justify its decisions, the Court notes that under the aforementioned provisions a central condition for the imposition of the impugned measures related to the natural parent ’ s ability to assume care. Thus, pursuant to section 4-21, a precondition for revoking the care order was the high probability that the parent would be able to provide the child with proper care. Under section 4-20, consent to adoption could be given if it had to be regarded as probable that the parent would be permanently unable to provide the child with proper care. 218. The City Court assessed that issue primarily in the part of its reasoning devoted to the applicant ’ s request to have the care order lifted, which can be summarised as follows. Her situation had improved in some areas (see paragraph 100 above). However, X was a vulnerable child who had shown emotional reactions in connection with the contact sessions (see paragraphs 101- 0 2 above). The evidence adduced had clearly shown that the first applicant ’ s fundamental limitations at the time of the High Court ’ s judgment in the previous set of proceedings still persisted. She had not improved her ability to handle contact situations; she had affirmed that she would fight until the child was returned to her; and she had stated that she did not consider that public exposure and repeated legal proceedings could be harmful for the child in the long term (see paragraphs 103- 0 4 above). Moreover, the experts who had testified in court, other than K.M., had advised against returning X to his mother (see paragraph 105 above). There was no reason to consider in further detail any other arguments regarding the first applicant ’ s ability to provide care, since returning X to her was in any event not an option owing to the serious problems it would cause him to be moved from the foster home (see paragraph 106 above). 219. In deciding on the child welfare services ’ application for removal of the first applicant ’ s parental responsibilities in respect of X and authorisation of the latter ’ s adoption, the City Court endorsed the Board ’ s reasoning regarding the alternative criteria in letter (a) of section 4-20 of the Child Welfare Act, namely that it had to be regarded as probable that the first applicant would be permanently unable to provide X with proper care or that X had become so attached to his foster home and the environment there that, on the basis of an overall assessment, removing him could cause him serious problems (see paragraph 108 above). In so far as the question of caring skills is concerned, the following findings of the Board are noteworthy in this context. There was nothing to indicate that the first applicant ’ s caring skills had improved since the High Court ’ s judgment of 22 April 2010. She had not realised that she had neglected X and was unable to focus on the child and what was best for him. Whilst note had been taken of the information that the first applicant had married and had had a second child, this was not decisive in respect of her capacity to care for X. He was a particularly vulnerable child and had experienced serious and life-threatening neglect during the first three weeks of his life. The Board had also taken account of the experience during the contact sessions. Moreover, since X had lived in the foster home for three years and did not know the first applicant, returning him to her would require a great capacity to empathise with and understand him and the problems that he would experience. Yet the first applicant and her family were completely devoid of any such empathy and understanding (see paragraph 90 above). 220. The Court is fully conscious of the primordial interest of the child in the decision-making process. However, the process leading to the withdrawal of parental responsibilities and consent to adoption shows that the domestic authorities did not attempt to perform a genuine balancing exercise between the interests of the child and his biological family (see paragraphs 20 7 and 20 8 above), but focused on the child ’ s interests instead of trying to combine both sets of interests, and moreover did not seriously contemplate any possibility of the child ’ s reunification with his biological family. In this context, the Court, in particular, is not persuaded that the competent domestic authorities duly considered the potential significance of the fact that at the time when the first applicant applied to have the care order lifted or, in the alternative, to be granted extended contact rights she was going through substantial changes in her life : in the same summer and autumn as the impugned proceedings commenced she married and had a second child. In this regard, as the City Court ’ s decision was largely premised on an assessment of the first applicant ’ s lack of capacity to provide care, the factual basis on which it relied in making that assessment appears to disclose several shortcomings in the decision - making process. 221. The Court notes that the decisions under consideration had been taken in a context where there had only been very limited contact between the first applicant and X. The Board, in its decision of 2 March 2009, and the High Court, in its judgment of 22 April 2010 ( overturning the City Court ’ s judgment of 19 August 2009 ), had relied on the consideration that it was most likely that the foster care arrangement would be a long-term one, and that X would grow up in the foster home (see paragraphs 31, 43 and 75 above). The High Court stated that contact sessions could thus serve as a means of maintaining contact between the mother and son, so that he would be familiar with his roots. The purpose was not to establish a relationship with a view to the child ’ s future return to the care of his biological mother (ibid.). As regards the implementation of the contact arrangements, the Court also notes that these had not been particularly conducive to letting the first applicant freely bond with X, for example with regard to where the sessions had been held and who had been present. Although the contact sessions had often not worked well, it appears that little was done to try out alternative arrangements for implementing contact. In short, the Court considers that the sparse contact that had taken place between the applicants since X was taken into foster care had provided limited evidence from which to draw clear conclusions with respect to the first applicant ’ s caring skills. 222. Furthermore, the Court regards it as significant that there were no updated expert reports since those that had been ordered during the previous proceedings between 2009 and 2010 relating to the taking into public care. Those were the report by psychologist B.S. and family therapist E.W.A, ordered by the child welfare services and concerning X ’ s reactions to the contact sessions in the beginning of September 2009 (see paragraph 58 above), and the report by psychologist M.S., who had been appointed by the High Court on 15 November 2009 (see paragraph 61 above). The former dated back to 20 February 2010 and the latter to 3 March 2010 (see paragraphs 62 and 63 above respectively). When the City Court delivered its judgment on 22 February 2012, both reports were two years old. Indeed, alongside other witnesses such as family members, psychologists B.S. and M.S. also gave evidence during the hearing held by the City Court in 2012 (see paragraph 98 above). However, the two psychologists had not carried out any examinations since those prior to their reports dating back to early 2010 and only one of the reports, the one by psychologist M.S., had been based on observations of the interplay between the applicants, and then only on two occasions ( see paragraph 63 above ). 223. The Court does not overlook the fact that the child welfare services had sought information from the first applicant concerning her new family that she apparently refused to provide (see paragraphs 85 and 115 above). At the same time it notes that counsel for the first applicant had expressly requested that a new expert assessment be made but that the High Court dismissed the request (see paragraphs 114 and 118 above). Nor had the City Court ordered a new expert examination proprio motu in the course of the proceedings before it. While it would generally be for the domestic authorities to decide whether expert reports were needed (see, for example, Sommerfeld, cited above, § 71), the Court considers that the lack of a fresh expert examination substantially limited the factual assessment of the first applicant ’ s new situation and her caring skills at the material time. In those circumstances, contrary to what the City Court seems to suggest, it could not reasonably be held against her that she had failed to appreciate that repeated legal proceedings could be harmful for the child in the long run (see paragraphs 104 and 21 8 above). 224. In addition, from the City Court ’ s reasoning it transpires that in assessing the first applicant ’ s caring skills it had paid particular regard to X ’ s special care needs, seen in the light of his vulnerability. However, whereas X ’ s vulnerability had formed a central reason for the initial decision to place him in foster care (see, for instance, paragraphs 31 and 42 above), the City Court ’ s judgment contained no information on how that vulnerability could have continued despite the fact that he had lived in foster care since the age of three weeks. It also contained barely any analysis of the nature of his vulnerability, beyond a brief description by experts that X was easily stressed and needed a lot of quiet, security and support, and stating his resistance to and resignation toward having contact with the first applicant, notably when faced with her emotional outbursts (see paragraphs 101 to 102 above). In the view of the Court, having regard to the seriousness of the interests at stake, it was incumbent on the competent authorities to assess X ’ s vulnerability in more detail in the proceedings under review. 225. Against this background, taking particular account of the limited evidence that could be drawn from the contact sessions that had been implemented (see paragraph 22 1 above), in conjunction with the failure – notwithstanding the first applicant ’ s new family situation – to order a fresh expert examination into her capacity to provide proper care and the central importance of this factor in the City Court ’ s assessment (see paragraphs 22 2 - 3 above) and also of the lack of reasoning with regard to X ’ s continued vulnerability (see paragraph 22 4 above), the Court does not consider that the decision -making process leading to the impugned decision of 22 February 2012 was conducted so as to ensure that all views and interests of the applicants were duly taken into account. It is thus not satisfied that the said procedure was accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake. 226. In the light of the above factors, the Court concludes that there has been a violation of Article 8 of the Convention in respect of both applicants. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 227. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 228. The applicants each claimed 25,000 euros (EUR) in respect of non ‑ pecuniary damage. 229. The Government asked the Court, in the event of a finding of a violation, to afford just satisfaction within the limits of Article 41 of the Convention. 230. The Court considers that awarding damages to the first applicant is appropriate in this case, having regard to the anguish and distress that she must have experienced as a result of the procedures relating to her claim to have X returned and the child welfare services ’ application to have her parental responsibilities for X withdrawn and his adoption authorised. It awards the first applicant EUR 2 5,000 under this head. In respect of X, having regard to his age at the relevant time and to the fact that he did not experience the procedures in question in the same way as the first applicant, the Court finds that a finding of violation can be regarded as sufficient just satisfaction. B. Costs and expenses 231. The applicants also claimed EUR 50,000 for the costs and expenses incurred before the domestic authorities and the Chamber and EUR 9,564 for those incurred before the Grand Chamber. 232. The Government asked the Court, in the event of a violation, to afford just satisfaction within the limits of Article 41 of the Convention. 233. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 234. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and before the Chamber, since the applicants have not shown that these expenses were actually incurred. As to the costs and expenses before the Grand Chamber, the Court observes that apart from travel expenses, the claim is submitted with reference to a contingency (no-win no-fee) arrangement, according to which the first applicant is obliged to pay counsel EUR 9,000 in the event of “success before the European Court of Human Rights”. Agreements of this nature – giving rise to obligations solely between lawyer and client – cannot bind the Court, which must assess the level of costs and expenses to be awarded with reference not only to whether the costs are actually incurred but also to whether they have been reasonably incurred (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 55, ECHR 2000 ‑ XI). Accordingly, the Court must as a basis for its assessment examine the other information provided by the applicants in support of their claim. In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part (see, inter alia, A, B and C v. Ireland [GC], no. 25579/05, § 281, ECHR 2010). In the instant case, the Court, taking into account that the claim has not been contested, considers it reasonable to award the sum of EUR 9, 35 0 for the proceedings before the Grand Chamber. In the circumstances, it is appropriate to award this compensation to the first applicant only. C. Default interest 235. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in respect of both applicants. It found in particular that the main reason for the Norwegian authorities’ actions had been the mother’s inability to care properly for her son, in particular in view of his special needs as a vulnerable child. However, that reasoning had been based on limited evidence as the contact sessions between mother and son after his placement in foster care had been few and far between and the psychologists’ reports out-dated. In addition, a review of his vulnerability had contained barely any analysis and no explanation as to how he could continue to be vulnerable despite having been in care since he was three weeks’ old. Overall, the domestic authorities had not in the present case attempted to carry out a genuine balancing exercise between the interests of the child and his biological family or taken into consideration developments in the mother’s family life, namely she had in the meantime married and had a second child. |
503 | Unavailability of widows’ allowances to widowers | THE LAW 12. On 4 September 2001 the Court received the following declaration from the Government: “I declare that the Government of the United Kingdom offer to pay GBP 1,000 to Mr Dean Edward Sawden with a view to securing a friendly settlement of the application registered under no. 38550/97. This sum shall cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months from the date of delivery of the judgment by the Court pursuant to the Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case. The Government further undertake not to request the reference of the case to the Grand Chamber under Article 43 § 1 of the Convention.” 13. On 14 September 2001 the Court received from the applicant’s representative the following declaration signed by him: “I note that the Government of the United Kingdom are prepared to pay me a sum totalling GBP 1,000 covering both pecuniary and non-pecuniary damage and costs with a view to securing a friendly settlement of application no. 38550/97 pending before the Court. I accept the proposal and waive any further claims in respect of the United Kingdom relating to the facts of this application. I declare that the case is definitely settled. This declaration is made in the context of a friendly settlement which the Government and the applicant have reached. I further undertake not to request the reference of the case to the Grand Chamber under Article 43 § 1 of the Convention after the delivery of the Court’s judgment.” 14. The Court takes note of the agreement reached between the parties (Article 39 of the Convention) and the amended legislation (paragraph 11 above). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 15. Accordingly, the case should be struck out of the list. | The Court, after having taken formal note of a friendly settlement (Article 39 of the Convention) reached by the UK Government and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided to strike the case out of its list. |
501 | Pension scheme | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Charter of Fundamental Rights and Freedoms (Constitutional Act no. 2/1993) 15. Article 1 provides that all people are free with equal dignity and equal rights. Their fundamental rights and freedoms are inherent, inalienable, imprescriptible, and not subject to repeal. 16. Under Article 3 everyone is guaranteed the enjoyment of his or her fundamental rights and basic freedoms without regard to gender, race, colour of skin, language, faith and religion, political or other conviction, national or social origin, membership of a national or ethnic minority, property, birth, or other status. 17. Article 30 provides that citizens have the right to adequate material security in old age and during periods of incapacity to work, as well as in the case of the loss of their household provider. B. Development of the State pension schemes in the territory of the Czech Republic, with special regard to the State pensionable age 18. Differentiated age limits for men and women for entitlement to State retirement pensions were first introduced by the Social Security Act ( no. 55/1956 ), which became effective on 1 January 1957. In general, the pensionable age for men was set at sixty years, while for women it was set at fifty-five years. 19. The Social Security Act ( no. 101/1964 ), effective from 1 July 1964, specified differentials in female pensionable age based on the number of children women raised. The explanatory report on the bill noted the following: “This differentiated age limit for acquiring the right to retire reflects the different situation in the lives of mothers who, when they took care of children, also carried out duties in the family in addition to their employment duties.” 20. The State Pension Insurance Act ( no. 155/1995 ), effective since 1 January 1996, provides for the basic State pension insurance coverage, laying down the conditions for eligibility for pensions, including retirement pensions, and the methods for calculating and paying out pensions. The pension scheme works on the pay-as-you-earn principle, whereby employees pay contributions from their income, which serve the purpose of financing pensions for today's pensioners from the national budget. Male and female earners are obliged to pay the same social - security contributions in accordance with their status as employed earners or self-employed earners. 21. At the relevant time, section 32 (1) of the State Pension Insurance Act provided as follows: “(1) The pensionable age is ( a) for men, 60 years, ( b) for women : 1. 53 years provided they have raised at least five children, 2. 54 years provided they have raised three or four children, 3. 55 years provided they have raised two children, 4. 56 years provided they have raised one child, or 5. 57 years, if the insured persons had attained that age by 31 December 1995. ” Section 32 ( 2 ) provided that for insured persons who reached the above ‑ mentioned age limits between 1 January 1996 and 31 December 2006 the pensionable age was to be gradually raised by two months for men and four months for women for each calendar year, even incomplete, between 31 December 1995 and the date of reaching the above-mentioned age limits. Section 32(4) provided at the relevant time: “ (4) The requirement for a woman to raise children in order to become entitled to an [earlier] State retirement pension has been satisfied if the woman personally takes care, or has taken care, of children for at least ten years before the children reach the age of majority. However, if a woman starts to raise a child after the child has reached the age of eight years, the requirement of raising children has been met if the woman personally takes care, or has taken care, of the child for at least five years before the child reaches the age of majority; however, the foregoing shall not apply if the woman stopped taking care of the child before the child reached the age of majority.” 22. According to the Government's submissions, women are called upon to prove that they have raised children for the statutory period by completing a statutory declaration appended to their application for the retirement pension. 23. Owing to complex demographic changes, the State pensionable age for all persons has thus been gradually rising. Since 200 3 the Government have made efforts to push through two amendments of the State Pension Insurance Act envisaging a gradual equalisation of men's and women's retirement age regardless of the number of children raised. However, owing to difficult political negotiations with certain political parties and trade unions, the only possible solution was to reach a compromise. 24. As a result, the amended Act no. 155/1995, effective from 1 January 2010, provides in section 32 as follows: “(1) The pensionable age is ( a) for men, 60 years, ( b) for women : 1. 53 years provided they have raised at least five children, 2. 54 years provided they have raised three or four children, 3. 55 years provided they have raised two children, 4. 56 years provided they have raised one child, or 5. 57 years, in the case of insured persons born before 1936. (2) For insured persons born after 1936 and before 1968 the pensionable age is determined according to the table annexed to this Act, which calculates the increased pensionable ages by adding extra months. ( 3 ) For insured persons born after 1968 the pensionable age is ( a) for men, 65 years, ( b) for women : 1. 62 years provided they have raised at least four children, 2. 63 years provided they have raised three children, 3. 64 years provided they have raised two children, or 4. 65 years .” C. Constitutional Court judgment no. Pl. ÚS 53/2004 of 16 October 2007 25. By this judgment, the Plenary of the Constitutional Court rejected the Supreme Administrative Court's petition for the repeal of section 32 of the Pension Insurance Act. It held that a particular legal framework which gave an advantage to one group or category of persons compared to another could not in itself be said to violate the principle of equality, and that the legislature had discretion to implement preferential treatment. The approach at stake was based on objective and reasonable grounds and pursued a legitimate aim. The court came to the conclusion that the proposed repeal would be contrary to the principles of legal certainty and minimal restrictions on human rights as women would lose preferential treatment whereas men would not receive the same benefits. Therefore, the solution to the unequal treatment of men and women required a complex and prudent adjustment of the whole pension scheme. In its observations to the Constitutional Court the Ministry of Labour and Social Affairs submitted that among the European Union Member States a similar provision was effective for a temporary period only in Slovakia and to a limited extent in Slovenia. THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 26. The applicant complained that he was discriminated against in the enjoyment of his property rights on account of his sex. In particular, he alleged that the pension scheme, which established a different pensionable age for women caring for children and for men in the same position, did not pursue any legitimate aim. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 provides: “1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 27. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely with regard to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, amongst many authorities, Şahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles ( see, among other authorities, Gaygusuz v. Austria, § 36, 16 September 1996, Reports of Judgments and Decisions 1996-IV, and E.B. v. France [GC], no. 43546/02, § 47, ECHR 2008 ‑ ... and references therein). 28. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the State has voluntarily decided to provide (see Stec and Others v. the United Kingdom ( dec .) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X ). 29. If a Contracting State has legislation in force providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (ibid., § 54 ). 30. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question. Although Protocol No. 1 does not include the right to receive a social - security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14. ( ibid., § 55). 31. It follows that the applicant's interests fall within the scope of Article 1 of Protocol No. 1 and of the right to property which it guarantees. This is sufficient to render Article 14 applicable in this case. 32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties'submissions (a) The applicant 33. As the applicant did not submit his observations within the given time-limit, they have not been included in the case file. (b) The Government 34. The Government admitted that the applicant had been subjected to different treatment from a woman in a similar situation who had raised one or two children. In their view, however, such a difference in treatment had an objective and reasonable justification. 35. In this connection, the Government pointed out that the Social Security Act (no. 101/1964), which introduced a differentiated pensionable age depending on the number of children women had raised (see paragraph 19 above), reflected the economic and social situation in the then socialist Czechoslovakia. Firstly, the extensive development of the economy necessitated the full involvement of women in the labour process. Secondly, under the Communist regime, women were primarily responsible for the functioning of families and almost entirely responsible for children. In that period, the foundations for the family model ( persisting until the present time) were laid; under that model, women were expected to work on a full ‑ time basis and at the same time to take care of children and the household. As a result of the combination of those two factors, mothers found themselves under an enormous burden. At the same time, the then legislature took into account the biological perspective because the child-raising requirement set forth in the Act implied from the outset not only the care of the child but also pregnancy, childbirth, breastfeeding and so on. 36. Against this background, the Government admitted that the measure consisting in the lowering of the pensionable age for women according to the number of children raised had not been introduced to protect or reward parents for raising children, but served as a protective measure compensating for the factual inequality in which women in their capacity as mothers found themselves in comparison with men. It thus aimed to rectify the inequalities between the social roles of the two sexes in the family and to redress the imbalance created by maternity, which would always constitute a certain disadvantage for mothers in the labour market. Since those disadvantages stemmed from the biological differences between women and men, the Government submitted that the measure challenged by the applicant appeared to be objectively and reasonably justified for the purposes of Article 14 of the Convention. 37. Furthermore, the Government submitted that, unlike biological factors, social factors were subject to change. Therefore, the differentiated pensionable age for women depending on the number of children raised would continue to be justified until social conditions changed enough for women to cease to be disadvantaged as a consequence of the existing family model. 38. Because changes in the organisation of family life were evolving only very slowly in the Czech Republic, the Government believed that, as in the case of Stec and Others v. the United Kingdom ( [GC], no. 65731/01, ECHR 2006 ‑ VI ), it would be difficult to specify the moment from which this unfairness to men ( caused by the lowering of the State pensionable age depending on the number of children raised only in the case of women ) prevailed over the need to remedy the disadvantaged position of women. Also, the Constitutional Court had held in its judgment no. Pl. ÚS 53/2004 that the elimination of inequalities between men and women in the State pension insurance scheme should fully reflect the development of the situation in society. 39. With regard to the exact timing and method for rectifying the inequality, the Government stated that amendments to Act no. 155/1995, regulating the State pension insurance scheme, had introduced the gradual raising of the existing pensionable ages as one of the key measures of pension reform. Another objective of the subsequent measures was the equalisation of the State pensionable age for men and women, regardless of the number of children raised. 40. The Government asserted that the current measures were only temporary solutions, part of the long - term fundamental reform of the whole State pension system. Two other approaches would be far more difficult than this method of taking gradual steps. An instant abolition of the lowering of women's State pensionable age in relation to the number of children raised would have been socially insensitive, contrary to the principle of foreseeability of the law and therefore entirely unacceptable both politically and socially. The lowering of the male pensionable age in relation to the number of children raised would lead to a considerable increase in the expenditure of the Czech Social Security Administration and to an unavoidable increase in the caseload of the courts, which would have to devise a very complicated system for checking which of the parents actually took care of children and was therefore eligible for the lowered retirement age. This method would have meant a step back in pension reform overall, which, in fact, envisaged a considerable increase in the State pensionable age for everyone. 41. So far, the Government had succeeded in pushing through proposals for the gradual equalisation of the State pensionable age for men and women in general. For this purpose the pensionable age for women was currently growing twice as fast as that for men. The upper limit had been set, for the time being, at sixty-five years for men and women. 42. As early as 2003, the Government had tried to abolish, on a step - by - step basis, the lowering of the women's State pensionable age in relation to the number of children raised, but having regard to the negative opinions of organisations representing both employees and employers (see paragraph 23 above), they had abandoned that intention for the time being in the interest of maintaining lasting social stability. Later, in 2007, they had not succeeded in pushing through a similar proposal to its full extent, so for the time being the lowering of the State pensionable age in relation to the number of children raised had been abolished only for women born after 1968 who had raised one child (see paragraph 24 in fine above ). 43. The Government also drew attention to further attempts to gradually remove gender-based differentials from the State pension insurance scheme, such as entitlement to bereavement benefits for men and women taking into account care for children, parental leave and parental allowance. 44. The Government lastly noted that the Court, in the case of Stec and Others ( judgment, cited above), had refused to blame the United Kingdom government for the lengthy process of consultation and review and the national parliament's decision to introduce reform slowly and in stages. The Czech Government believed that the employers'and employees'representatives'negative view of the proposal to abolish the lowering of women's State pensionable age in relation to the number of children raised reflected, inter alia, evidence brought to light by surveys and statistical data, which indicated that, in the Czech Republic, a traditional family model still prevailed. 45. In the light of the above considerations, the Government concluded that the decisions on the exact timing and method for rectifying the inequality were not so “manifestly unreasonable” as to exceed the wide margin of appreciation enjoyed by States in the formation of their economic and social policies. 2. The Court's assessment (a) General principles 46. The applicant complained of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14. 47. The Court's case-law establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). However, not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (see Ünal Tekeli v. Turkey, no. 29865/96, § 49, ECHR 2004-X). 48. Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; Stec and Others, judgment cited above, § 51; and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-XII, with further references). A difference in treatment is, however, discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment (see Van Raalte v. the Netherlands, 21 February 1997, § 39, Reports 1997-I). 49. The scope of this margin will vary according to circumstances, subject matter and background (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998-II). In this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States ( see Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87 ). As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see Stec and Others, judgment cited above, § 52, and Willis, cited above, § 39 ). This principle is strengthened by the efforts for advancement of the equality of the sexes which is today a major goal in the member States of the Council of Europe (see Konstantin Markin v. Russia, no. 30078/06, § 47, 7 October 2010 (not final, subject to Article 44 § 2 of the Convention ), and Ünal Tekeli, cited above, § 59 ). 50. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are, in principle, better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the State's policy choice unless it is “manifestly without reasonable foundation” ( see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997-VII, and Stec and Others, judgment cited above, § 52 ). 51. Indeed the pension systems constitute cornerstones of modern European welfare systems. They are founded on the principle of long-term contributions and the subsequent entitlement to a pension guaranteed, at least to a certain extent, by the State. Unlike other welfare benefits, every member of society is eligible to draw this benefit after reaching the pensionable age. The inherent features of the system – stability and reliability – allow for lifelong family and career planning. For these reasons the Court considers that any adjustments of the pension schemes must be carried out in a gradual, cautious and measured manner. Any other approach could endanger social peace, foreseeability of the pension system and legal certainty. (b) Application of these principles to the present case 52. Both parties agreed that the application concerned the lowering of the pensionable age for women who took care of children but not for men in the same situation, and not the different pensionable age between men and women born before 1969 in general. The applicant, arguing that he had cared himself for his children born in 1982 and 1985, from at least 1997 until they had reached the age of majority, applied for a retirement pension in 2003, at the age of fifty-seven. His request was dismissed as he had not attained the pensionable age required for men, which could not be lowered according to the number of children raised (see paragraphs 6 and 7 above). 53. Acknowledging that, in the former Czechoslovakia, the more favourable treatment of women who raised children was originally designed to compensate for the factual inequality and hardship arising out of the combination of the traditional mothering role of women and the social expectation of their involvement in work on a full-time basis, the Court considers that this measure pursued a legitimate aim. 54. It remains to be examined whether or not the underlying difference in treatment between men and women in the State pension scheme is acceptable under Article 14, that is, whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised. 55. The Court cannot overlook the fact that the measure at stake is rooted in specific historical circumstances. The means employed in 1964 reflected the realities of the then socialist Czechoslovakia, where women were responsible for childcare and the related care of the household while being under pressure to work full time (see paragraph 19 and 35 above). The amount of salaries and pensions awarded to women was also generally lower in comparison with those awarded to men. 56. Although this family model inevitably shaped recent families, in today's society the child-bearing and child-rearing roles may no longer overlap to such a great extent. Indeed, the efforts by the respondent State to modify the pension scheme, whether successful or not, are intended to react to these and much wider social and demographic developments. Yet it is difficult to pinpoint any particular moment when the unfairness to men begins to outweigh the need to correct the disadvantaged position of women by means of affirmative action. The reluctance of certain political parties and trade unions to support the equalisation of the pension scheme may be indicative in this regard (see paragraph 23 above ). The Court cannot but reiterate that the national authorities are better placed than an international judge to determine such a complex issue relating to economic and social policies, which depends on manifold domestic variables and direct knowledge of the society concerned, and that they have to enjoy a wide margin of appreciation in this sphere. 57. The Court notes that the Czech Government have already made the first concrete move towards equalisation of the retirement age, since in the amendment of Act no. 155/1995, effective from 1 January 2010, they repealed the lowered pensionable age for women born after 1968 who had raised one child (see paragraph 24 in fine above). As a consequence the pensionable age is the same for women born after 1968 who have raised no children or one child as the pensionable age for men born after 1968. Women who have raised two or more children continue to have their pensionable age lowered. Nonetheless, the pension reform seems to be heading towards an overall increase in the pensionable age, taking no account of the number of children raised by either women or men (see paragraphs 40 - 42 above). 58. The Court acknowledges that owing to the difficult political negotiations, the resulting change in the Czech pension scheme is limited. However, the demographic shifts and changes in perceptions of the roles of the sexes are by their nature gradual and, after forty-five years of the existence of the measure at stake, it is necessary to time the amendment accordingly. Therefore, the State cannot be criticised for progressively modifying its pension system to reflect these gradual changes (see also paragraph 51 above) and for not having pushed for complete equalisation at a faster pace. Indeed, the respondent Government have to choose from among different methods of equalising the retirement age. This task is even more demanding and deserves well-thought -out solutions since the State has to place this reform in the wider context of other demographic shifts, such as the ageing of the population or migration, which also warrant adjustment of the welfare system, while preserving the foreseeability of this system for the persons concerned who are obliged to contribute to it. 59. The present case must therefore be distinguished from the issue of discrimination in the field of parental leave (see Konstantin Markin, cited above, not final ). In the Konstantin Markin case the Court held that the traditional perception of women as primary child-carers could not provide sufficient justification for the exclusion of the father from the entitlement to take parental leave from now on and for the future (ibid., § 49) and found a violation of Article 14 in conjunction with Article 8. However, unlike the pension scheme, parental leave is a short-term measure which does not affect the entire lives of members of society. It is related to today's life of those concerned whereas the pension age reflects and compensates for inequalities of former times. In the Court's opinion, the amendments of the parental leave system referred to in the case of Konstantin Markin do not involve changes to the subtle balance of the pension system, do not have serious financial ramifications and do not alter long-term planning, as might be the case with the pension system, which forms a part of national economic and social strategies. 60. To conclude, the Court finds that the original aim of the differentiated pensionable ages based on the number of children women raised was to compensate for the factual inequality between men and women. In the light of the specific circumstances of the case, this approach continues to be reasonably and objectively justified on this ground until social and economic changes remove the need for special treatment for women. In view of the time-demanding pension reform which is still ongoing in the Czech Republic, the Court is not convinced that the timing and the extent of the measures undertaken by the Czech authorities to rectify the inequality in question have been so manifestly unreasonable as to exceed the wide margin of appreciation allowed in such a field ( see Stec and Others, judgment cited above, § 6 6 ). 61. In these circumstances the Court finds that the Czech Republic cannot be criticised for having failed to ensure, in the present case, a reasonable relationship of proportionality between the impugned difference in treatment and the legitimate aim pursued. There has therefore been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention taken together with Article 1 (protection of property) of Protocol No. 1, finding that the Czech Republic’s approach concerning its pension scheme was reasonably and objectively justified and would continue to be so until such time as social and economic change in the country removed the need for special treatment of women. It considered in particular that the lowering of the age for which women were eligible for a pension in the Czech Republic, adopted in 1964 under the Social Security Act, was rooted in specific historical circumstances and reflected the realities of the then socialist Czechoslovakia. That measure pursued a “legitimate aim” as it was designed to compensate for the inequality and hardship generated by the expectations of women under the family model founded at the time (and which persisted today): that of working on a full-time basis as well as taking care of the children and the household. Indeed, the amount of salaries and pensions awarded to women was also generally lower in comparison to men. The Court also emphasised that the national authorities were the best placed to determine such a complex issue relating to economic and social policies, which depended on manifold domestic variables and direct knowledge of the society concerned. |
981 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | II. RELEVANT LAW AND PRACTICE A. Relevant domestic law and practice 1. Constitution 40. The relevant provisions of the Constitution of Ukraine provide: Article 19 “...Bodies exercising State power and local self-government bodies and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine.” Article 29 “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and [then] only on the grounds and in accordance with the procedure established by law. ... Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” Article 34 “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs...” Article 62 “A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through the process of law and established by a court verdict of guilty...” Article 63 “A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law...” 2. Criminal Code 41. Relevant provisions of the Code read as follows: Article 191 Misappropriation, embezzlement or conversion of property by malfeasance “1. Misappropriation or embezzlement of somebody else’s property by a person to whom it was entrusted... 2. Misappropriation, embezzlement or conversion of property by malfeasance... 3. Any such actions as provided for by paragraph 1 or 2 of this Article, if repeated or committed by a group of persons [acting] upon their prior conspiracy, shall be punishable by restraint of liberty for a term of three to five years, or imprisonment for a term of three to eight years, with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years. 4. Any such actions as provided for by paragraphs 1, 2 or 3 of this Article, if committed in respect of a large amount... 5. Any such actions as provided for by paragraphs 1, 2, 3 or 4 of this Article, if committed in respect of an especially large amount, or by an organized group, shall be punishable by imprisonment for a term of seven to twelve years, with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years and confiscation of property.” Article 364 Abuse of authority or office 1. Abuse of authority or office, namely the intentional use of authority or official position contrary to the official interests [of the State] by an official for financial gain or other personal benefit or the benefit of any third parties, where it causes substantial damage to legally protected rights, freedoms and interests of individual citizens, or to State and public interests, or the interests of legal persons... 2. The same act, if it causes any grave consequences... 3. Any such actions as provided for by paragraph 1 or 2 of this Article, if committed by a law enforcement officer, shall be punishable by imprisonment for a term of five to twelve years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years and forfeiture of property. Article 365 Exceeding authority or official powers 1. Exceeding authority or official powers, namely the intentional commission of acts by an official which patently exceed the rights and powers vested in him/her, where it causes substantial damage to the legally protected rights and interests of individual citizens, or State and public interests, or the interests of legal persons... 2. Exceeding authority or official powers accompanied with violence, use of weapons, or actions that cause pain or are derogatory to the victim’s personal dignity... 3. Any such actions as provided for by paragraph 1 or 2 of this Article, if they cause grave consequences, shall be punishable by imprisonment for a term of seven to ten years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years. 3. Code of Criminal Procedure 42. Relevant provisions of the Code read as follows: Article 43 The accused and his rights “... The accused has the right to ... get acquainted with all materials in the case file after the [conclusion of the] preliminary investigation or inquiry...” Article 43-1 The suspect “... The suspect has the right to ... request the review by a court or prosecutor of the legality of his detention, lodge complaints against the actions and decisions of ... the investigator...” Article 48 Duties and rights of defence counsel “...From the moment of his entry into the case, counsel for the defendant has the right: ... (3) to get acquainted with the materials which substantiate the detention of a suspect or choice of preventive measure or indictment, and, after the [conclusion of the] pre-trial investigation, with all materials in the case file...” Article 106: Detention of a criminal suspect by a body of inquiry “A body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: (1) if the person is discovered whilst, or immediately after, committing an offence; (2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence; (3) if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home. For each case of detention of a criminal suspect, the body of inquiry shall be required to draw up a record mentioning the grounds [for detention], the motives [for detention], the day, time, year and month [of detention], the place of detention, the explanations of the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel as from the moment of his arrest [2], in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee. A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as grounds for detention shall also be sent to him. The body of inquiry shall immediately inform one of the suspect’s relatives of his detention... Within seventy-two hours after the arrest the body of inquiry shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; [or] (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. If the detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the body of inquiry for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it. The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful. The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling. Detention of a criminal suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform the official or body that carried out the arrest accordingly.” Article 135 Compulsory attendance by an accused “An accused must appear upon the investigator’s summons at the fixed time. In case of failure to appear without valid reasons, the accused shall be taken to the investigator by force...” Article 142 Explaining his or her rights to an accused during an investigation “When charging an accused, the investigator must explain to the accused that during the pre-trial investigation he or she is entitled to: ... (2) make a statement about the charges against him or her or refuse to make a statement and to answer questions; ... (6) with the permission of the investigator, be present at the performance of certain investigative actions; (7) after the completion of the pre-trial investigation, get acquainted with all the materials in the case file...” Article 148 Purpose and grounds for the application of preventive measures “Preventive measures shall be imposed on a suspect, accused, defendant or convicted person in order to prevent him or her from attempting to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the enforcement of procedural decisions. Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from the investigation and the court, or if he or she fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence. If a preventive measure is applicable to a suspect, he or she shall be charged within ten days from the time of imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.” Article 150 Circumstances to be taken into account in choosing a preventive measure “In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged offence, the person’s age, state of health, family and financial status, type of employment, place of residence and any other circumstances relating to the person shall be taken into consideration.” Article 151 Written undertaking not to abscond “A written undertaking not to abscond is a written commitment by a suspect or an accused not to leave his or her place of permanent residence or temporary address without the permission of the investigator. If the suspect or accused breaches this written undertaking not to abscond, it may be replaced by a more stringent preventive measure. The suspect or the accused shall be informed about this upon giving the written undertaking not to abscond.” Article 165-2: Procedure for the selection of a preventive measure “At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the body of inquiry, investigator or prosecutor. In the event that the body of inquiry or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor’s consent [it or] he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person. The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained. In the event that the application concerns the detention of a person who is not currently deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality. Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order: (1) refusing to select the preventive measure if there are no grounds for doing so; [or] (2) selecting a preventive measure in the form of taking of the suspect or accused into custody. The court shall be entitled to select a non-custodial preventive measure for the suspect or accused if the investigator or prosecutor refuses to select a custodial preventive measure for him or her. The judge’s order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge’s order.” Article 218 (in force at the material time) Informing the accused of the termination of the investigation of the case and allowing him to study the materials in the case file “After deciding that the evidence collected in the case is sufficient to warrant an indictment, and after complying with the terms of Article 217 of this Code, the investigator shall inform the accused that the investigation of his case has ended and that he has the right to get acquainted with all of the materials in the case file personally and/or with the assistance of counsel... If the accused has not shown any interest in familiarising himself with the materials in the case file with the participation of counsel, he shall be personally provided with all of the materials in the case file for familiarisation. In the course of this familiarisation process, the accused has the right to make extracts (to copy in writing) and to lodge motions. The investigator must allow all accused persons, even if there are several in one case, to familiarise themselves with all the materials in the case file... ...Preliminary investigation materials presented for familiarisation shall be filed and numbered. During the presentation of the materials of the pre-trial investigation, the investigator shall be obliged to provide the accused, upon request of the latter, with a duly certified copy of the list of the materials in the case file... The time afforded to the accused and his counsel for familiarisation with all materials in the case file shall not be limited.” 4. Domestic courts’ case-law 43. The Government submitted two decisions of the domestic courts in which individuals had been awarded compensation for their unlawful detention. 44. In a decision of 17 January 2007, the Odessa Regional Court of Appeal awarded damages to a person who had been arrested by the police on 22 November 2005 but released the next day following the intervention of a prosecutor, who had found that person’s arrest unlawful and quashed the police’s decision to arrest. On 5 December 2005 the Bilgorod-Dnistrovskiy Local Court passed a resolution confirming the unlawfulness of the arrest. 45. In a decision of 11 October 2007, the Kyiv Court of Appeal awarded damages to a person who had been detained for twenty-two hours on 7 and 8 July 2002 at a police station without any documentation and had then been released. In this case, the person’s detention was found unlawful by the same court of appeal on 25 May 2006, as the person’s arrest and detention had not complied with Article 106 of the Code of Criminal Procedure. B. Relevant international materials 1. The Country Reports on Human Rights Practices by the US Department of State 46. The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2010, released on 8 April 2011, noted with respect to Ukraine: “d. Arbitrary Arrest or Detention The constitution and the law prohibit arbitrary arrest and detention; however, in practice problems remained. There was a sharp increase in charges brought against opposition politicians after the appointment of a new prosecutor general on November 4, giving rise to the appearance of selective and politically motivated prosecution by the Yanukovych government. Between November 1 and December 31, prosecutors brought charges against former prime minister Yulia Tymoshenko and more than eight high-level members of her government for abuse of office and/or misuse of state funds during their tenure. The questioning of accused individuals by government prosecutors, which often lasted for hours at a time over a period of several days, and the denial of bail in certain cases further exacerbated the perception of politically motivated prosecution (see section 4). The government contended that the prosecutions were not targeting the opposition, and that there were many ongoing investigations of members of the governing party; however, with only a few exceptions these were low-level, career officials. On December 12, the UHHRU [the Ukrainian Helsinki Human Rights Union] and the Kharkiv Human Rights Group issued a statement that the government’s criminal prosecutions were only aimed at members of the opposition. As a result, the government’s actions "spell the effective use of criminal court proceedings for political ends... and run counter to democratic values based on equality of all before the law and undermines the foundations of criminal justice," the statement said. On December 26, police detained former interior minister Yuriy Lutsenko in Kyiv on allegations of embezzlement, abuse of office, and forgery. The appeals court denied his petition for bail and approved the prosecutor general’s request for a two-month detention. Local human rights observers and opposition commentators described Lutsenko’s arrest as politically motivated, given the administrative nature of his alleged offenses. Lutsenko alleged that the prosecutor’s office ignored his constitutional rights throughout the investigation, in particular, delaying access to and denying time to review case materials and creating other "artificial barriers" to his right to become acquainted with the case...” 2. European Parliament resolution of 9 June 2011 on Ukraine: the cases of Yulia Tymoshenko and other members of the former government “The European Parliament, ...G. whereas 12 former high-ranking officials from the Tymoshenko government are in pre-trial detention, including the former Interior Minister, Yuri Lutsenko, one of the leaders of the People’s Self-Defence Party, who has been charged with abuse of office and misappropriation of funds and was arrested on 26 December 2010 for alleged non-cooperation with the prosecution, and the former First Deputy Minister of Justice, Yevhen Korniychuk, who was arrested on 22 December 2010 on charges of breaking the law in connection with public procurement procedures for legal services, H. whereas Mr Lutsenko was not released from pre-trial detention when his trial opened on 23 May 2011, despite the fact that detention for alleged non-cooperation in the investigation of his case is an extremely disproportionate measure, THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 49. The applicant complained under Article 5 § 1 (b) and (c) of the Convention that his arrest and detention had been arbitrary and not in accordance with law, reiterating the reasoning of his appeal against the decision of 27 December 2010 ordering his arrest (see paragraph 33 above). The applicant complained under Article 5 § 2 of the Convention that he had not been informed promptly of the reasons for his arrest. He further complained under Article 5 § 3 of the Convention that the decision ordering his detention had not been substantiated and that he had been punished for exercising his constitutional rights not to make self-incriminating statements, to be considered innocent until proved guilty and to hold an opinion. He further complained that he had not been provided with the materials of the investigation which had been used in support of the application for his detention and that the court of appeal had disregarded his arguments in favour of his release. The applicant lastly complained under Article 6 §§ 1, 2 and 3 (a) and (b) of the Convention that he and his lawyer had not been informed in advance of the subject of the court hearing concerning the preventative measure applied to him and had not been given the necessary time and facilities to prepare his defence. 50. The Court reiterates that it views complaints before it as characterised by the facts alleged in them and not merely by the legal grounds or arguments relied on. Being master of the characterisation to be given in law to the facts of the case and having regard to the substance of the applicant’s complaints under Article 6 of the Convention, the Court decides to examine them under the relevant provisions of Article 5 of the Convention. The relevant provisions of Article 5 of the Convention read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 1. Exhaustion of domestic remedies 51. The Government made an objection to the applicant’s complaints about his arrest on 26 December 2010. They noted that the applicant, being a suspect, could have asked the domestic courts, in accordance with Article 43-1 of the Code of Criminal Procedure, to review the lawfulness of his arrest and could have claimed damages should his detention have been found unlawful. The applicant, however, had failed to do so. The Government contended that this remedy had been effective both in theory and in practice. They submitted examples of domestic court decisions by which individuals had been awarded damages for their unlawful detention (see paragraphs 43-45 above). 52. The Government also pointed out that the court hearing of 27 December 2010 had dealt with the investigator’s request for the custodial preventive measure to be applied to the applicant in the context of the first criminal case and, accordingly, it could not have involved the examination of the issue concerning the applicant’s arrest in the context of the second criminal case. 53. The applicant considered that the examples from the domestic courts’ practice were not comparable to his case, as in those cases the individuals had been released within a day after their arrests because the domestic authorities had found their arrests to be unlawful. 54. The applicant further noted that, under Article 106 of the Code of Criminal Procedure, a complaint of unlawful arrest required to be considered together with the investigator’s application for the detention of the person concerned. Therefore, he considered that the hearing of 27 December 2010 had concerned both issues – the lawfulness of his arrest and the choice of custodial preventive measure. 55. The Court notes that the Government’s objections are closely linked to the merits of the applicant’s complaints under Article 5 §§ 1 and 3 of the Convention. It therefore joins them to the merits. 2. Otherwise as to admissibility 56. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 5 § 1 of the Convention a. Parties’ submissions 57. The applicant noted that the institution of the criminal proceedings in itself had not been sufficient to justify his deprivation of liberty. He maintained that his arrest had been conducted with numerous procedural violations and had not been justified. The case file had contained no specific evidence that the applicant had had any intention of escape and he could not have possibly continued any alleged criminal activities, as by the time of his arrest he had not been a member of the Government anymore. 58. The applicant further maintained that the first-instance court had failed to establish any evidence which would have shown the necessity of his detention between 26 and 27 December 2010 or thereafter. He considered that the grounds for his arrest which had been advanced by the prosecutor could not serve as sufficient and necessary grounds for deprivation of liberty. 59. He also maintained that upon committing him to trial on 23 May 2011 the Pechersky Court had prolonged his detention without fixing any time limit on it. 60. The Government asserted that the applicant’s arrest fell within paragraph (c) of Article 5 § 1. They noted that the applicant had been arrested within the framework of the criminal proceedings instituted against him and that the domestic authorities had had a reasonable suspicion that he had committed a crime. They stressed again that the applicant could have challenged the lawfulness of his arrest before the courts if he had considered his arrest unlawful. 61. As to the decision ordering the applicant’s detention given by the Pechersky Court on 27 December 2010, the Government contended that the domestic authorities had been better placed to assess the facts of the case and their decision to deprive the applicant of his liberty had been based on sufficient grounds, such as avoiding participating in procedural actions and not respecting decisions of the investigator, charges of serious crimes and the potential for the applicant to influence witnesses. They noted that the applicant had not appeared before the investigator in order to study the case file, although he had been obliged to do so under Article 135 of the Code of Criminal Procedure. The Government further submitted that the applicant’s detention was necessary to ensure his participation in further investigative actions. Furthermore, in his interview with the weekly newspaper Zerkalo Nedeli, the applicant had characterised witness K. negatively. In addition, his statements had thereby put pressure on the said witness and had disclosed information about the investigation. The Government further noted that the protection of witnesses had been the most important consideration in deciding on the applicant’s detention and this ground had been persistent both on investigative and judicial stages of the case to ensure proper administration of justice by receiving the witness testimonies without any obstacles. The Government concluded that the applicant’s deprivation of liberty had been based on the law, had been ordered by a court and had been free from any arbitrariness. b. The Court’s assessment i. The applicant’s arrest 62. The Court emphasises that Article 5 of the Convention guarantees the fundamental right to liberty and security, which is of primary importance in a “democratic society” within the meaning of the Convention. All persons are entitled to the protection of that right, that is to say, not to be deprived, or to continue to be deprived, of their liberty, save in accordance with the conditions specified in Article 5 § 1. The list of exceptions set out in the aforementioned provision is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely, to ensure that no one is arbitrarily deprived of his or her liberty (see Khayredinov v. Ukraine, no. 38717/04, § 26, 14 October 2010, with further references). No detention which is arbitrary can be compatible with Article 5 § 1, the notion of “arbitrariness” in this context extending beyond a lack of conformity with national law. As a consequence, a deprivation of liberty which is lawful under domestic law can still be arbitrary and thus contrary to the Convention, in particular where there has been an element of bad faith or deception on the part of the authorities (see Mooren v. Germany [GC], no. 11364/03, §§ 72, 77 and 78, 9 July 2009, with further references) or where such deprivation of liberty was not necessary in the circumstances (see Nešťák v. Slovakia, no. 65559/01, § 74, 27 February 2007). 63. Turning to the facts of the present case, the Court notes that the applicant was arrested within the framework of the second criminal case and was taken to a court on the next day. However, the court did not examine the lawfulness of the applicant’s arrest and, according to the Government, which in fact insisted on this point, had not intended to do so. The relevant facts also confirm that the prosecuting authorities took the applicant to the court solely for examination of their application for the applicant’s detention in connection with the first criminal case and effectively opposed any examination of the lawfulness of the applicant’s arrest during the hearing of 27 December 2010. Such behaviour on the part of the domestic authorities strongly suggests that the purpose of the applicant’s arrest was not to bring him before a competent legal authority within the same criminal case, but to ensure his availability for examination of the application for a change of preventive measure to a custodial one in a different set of criminal proceedings. 64. Furthermore, the applicant’s arrest does not appear to have been “necessary to prevent him from committing an offence or fleeing after having done so”. It is true that the order for the applicant’s arrest indicated among the reasons therefor the prevention of his avoiding participating in the investigation and of his continuing criminal activities, however the authorities failed to explain in what way the applicant, being accused of abuse of office, could continue this type of activity almost a year after he had left the office of Minister of the Interior. Concerning the necessity to ensure the applicant’s participation in further investigative actions, the Government submitted that the resumption of the investigation had been necessary to consolidate two criminal cases against the applicant (see paragraph 25 above). They did not claim however that any such actions within the first criminal case had been necessary or had been eventually conducted. As to the risk of fleeing, the applicant was under an obligation not to abscond which he had given to the very same investigator, V., who had arrested him and who did not appear to have any previous complaints concerning the applicant’s compliance with the said obligation. 65. The Court therefore concludes that the applicant’s arrest was made for another purpose than that indicated in Article 5 § 1 of the Convention and was therefore arbitrary and contrary to this provision. It follows that there has been a violation of Article 5 § 1 of the Convention in this respect. ii. The applicant’s ensuing detention 66. Having established that the applicant’s arrest was contrary to Article 5 § 1 of the Convention, the Court will next examine the compliance of the applicant’s ensuing pre-trial detention with the requirements of this provision. In this respect, the Court reiterates that detention pursuant to Article 5 § 1 (c) must embody a proportionality requirement (see Ladent v. Poland, no. 11036/03, § 55, 18 March 2008). For example, in the case of Ambruszkiewicz v. Poland (no. 38797/03, §§ 29-32, 4 May 2006) the Court examined whether the applicant’s placement in custody was strictly necessary to ensure his presence at trial and whether other, less stringent, measures could have been sufficient for that purpose. 67. In the present case, the decision of the domestic court ordering the applicant’s detention was based on grounds which, in the Court’s opinion, are in themselves questionable. In this respect, the Court observes that the principal reasons advanced by the prosecution to deprive the applicant of his liberty were the investigator’s dissatisfaction with the applicant’s behaviour in studying the case file, the applicant’s interviews with the media and his unwillingness to testify and to admit his guilt, as well as charges of committing serious crimes. 68. As to the applicant’s manner of studying the case file, which could potentially affect the length of the proceedings, the Court first recalls its own well-established case-law, which identifies the behaviour of the parties to court proceedings as one of the key factors in assessing the reasonableness of the length of such proceedings (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). In particular, if an applicant complains that the proceedings lasted for an unreasonably long time the Court will normally deduct any period during which the delay is attributable to the applicant (see, for example, Smirnova v. Russia, nos. 46133/99 and 48183/99, § 81, ECHR 2003-IX (extracts); and Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 198, 10 June 2010). On the other hand, any such delay could affect the interests of other parties and the authorities should have the means to discipline the person responsible. The Court is not persuaded, however, that deprivation of liberty in such a situation is an adequate response to the problem of delay in studying a case file. Moreover, the circumstances of the present case show that the investigator decided to apply such a drastic measure to the applicant after only ten days of studying the case file. 69. The Court further notes the applicant’s submissions made at the domestic level and repeated before this Court, namely that this ground for his detention was in contradiction with the provisions of domestic law, which provided in particular that study of a case file is a right and not an obligation of an accused and that the time available to an accused for study of the case file should not be limited (Articles 142 and 218 [3] of the Code of Criminal Procedure, see paragraph 42 above). The domestic courts, however, did not examine these submissions and did not assess to what extent the manner in which the investigator presented the case file to the applicant had complied with the requirements of the aforementioned Article 218 [4] of the Code. 70. The next ground for the applicant’s detention was alleged pressure put on a witness through the applicant’s interviews with the media. The Government argued that protection of witnesses had been the most important consideration in deciding on the applicant’s detention. The Court notes, however, that neither the domestic authorities nor the Government themselves explained in what way the witnesses had been actually threatened by the applicant’s public statements and why the detention could be considered an adequate response to such statements. It appears that this ground was stated by the investigating authorities in the broader context of their dissatisfaction with the applicant’s presentation to the media of his opinion concerning the criminal proceedings against him. The Court considers that, being a prominent political figure, the applicant could be expected to express his opinion on this matter and that this would interest both his supporters and opponents. 71. Although freedom of expression is not absolute and may be restricted, any such restriction should be proportionate. In this respect the Court reiterates that the imposition of a prison sentence for a media-related offence will be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in cases of hate speech or incitement to violence (see, mutatis mutandis, Mahmudov and Agazade v. Azerbaijan, no. 35877/04, § 50, 18 December 2008, and Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 115, ECHR 2004-XI). The Court considers that in the circumstances of the instant case there was no justification for the deprivation of the applicant’s liberty for exercising his freedom of speech which did not constitute any offence. 72. The further grounds for the applicant’s detention, namely failure to testify and admit his guilt, by their nature run contrary to such important elements of the fair trial concept as freedom from self-incrimination and the presumption of innocence. In the context of choice of whether or not to impose a custodial preventive measure, the advancing of such grounds appears particularly disturbing as they indicate that a person may be punished for relying upon his basic rights to a fair trial. The Court is also concerned with the fact that the domestic courts agreed with such grounds in ordering and upholding the applicant’s detention. 73. Finally, ordering further detention without fixing any time-limit on it has been found in the Court’s case-law to be contrary to the requirements of Article 5 § 1 (c) (see Kharchenko v. Ukraine, no. 40107/02, § 98, 10 February 2011). 74. In the light of the above, the Court concludes that the applicant’s ensuing detention has been in violation of Article 5 § 1 of the Convention too. 2. Article 5 § 2 of the Convention a. Parties’ submissions 75. The applicant complained that at the time of his arrest he had not been informed of the reasons for his arrest and he had not been allowed to read the charge sheet concerning his arrest. He also stressed that he had not signed the charge sheet, considering his arrest not to be in conformity with the relevant procedural rules. He maintained that the investigator had not informed him of the grounds for the deprivation of his liberty, had not allowed him to contact his lawyer and had not drawn up a proper arrest report. According to the applicant, the investigator had done so intentionally in order to prevent him from exercising his right to challenge the lawfulness of his arrest in court. 76. The Government maintained that on 26 December 2010 the applicant had been arrested at 12.45 a.m. and less than an hour later he had been served with a copy of the investigator’s decision of 24 December 2010 to institute the second set of criminal proceedings against him. According to them, the applicant had refused to sign the record on receipt of the copy of the aforementioned decision, which had been witnessed by two witnesses. The Government concluded that the applicant had been informed of the reasons for his arrest without undue delay. b. The Court’s assessment 77. The Court reiterates that Article 5 § 2 of the Convention contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. By virtue of this provision any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness (see, among recent authorities, Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 208, 21 April 2011). In case of several concurring investigations, the authorities shall provide the person concerned with at least a minimum of information about each of them, if the materials from those investigations can serve as a basis for his detention (see Leva v. Moldova, no. 12444/05, § 61, 15 December 2009). 78. Turning to the circumstances of the present case, the Court notes that it is in dispute between the parties whether and to what extent the applicant was informed of the formal reasons for his arrest. However, it is not disputed by the Government that at the time of his arrest on 26 December 2010 the applicant was not informed of the existing application for his detention prepared by the GPO on 25 December 2010. The Court considers that this particular event was pertinent to the applicant’s detention and ultimately served as a basis for his detention. In fact, the applicant only came to be informed of the prosecutor’s application of 25 December during the court hearings that took place on 27 December 2010, more than twenty hours after his arrest. 79. The foregoing considerations are sufficient to enable the Court to conclude that the authorities did not comply with their obligations under Article 5 § 2 of the Convention. There has accordingly been a violation of this provision. 3. Article 5 § 3 of the Convention a. Parties’ submissions 80. The applicant considered that the detention proceedings before the first-instance court had been unfair. The court had refused to hold a hearing on the lawfulness of his arrest and had denied him time to prepare his arguments against the application of the investigator for his detention. 81. The Government repeatedly stressed that the court proceedings of 27 December 2010 had not been related to the applicant’s arrest of 26 December 2010 and reiterated that the applicant could have challenged his arrest by bringing proceedings himself if he had considered it unlawful. 82. They further noted that the proceedings concerning the application for replacement of the preventive measure from an obligation not to abscond with pre-trial detention had met the requirements of Article 5 § 3. The applicant had been represented by a lawyer and at the beginning of the hearing the court had explained which case was under examination. The prosecutor had read out the application for the applicant’s arrest, which had not contained any information that could not have been known to the applicant, as this information had concerned his own behaviour. The Government also noted that during the hearing the applicant had put forward the motions which he had considered necessary and the court had duly examined them. In particular, the court had rejected the applicant’s motion to postpone the hearing in order to collect documents in respect of the applicant’s personal situation, as it had considered that the information provided by the applicant in this respect was not contested and therefore could be accepted without supporting documents. The Government further mentioned that during the hearing the applicant’s lawyer had claimed that he had been in possession of documents which could refute the prosecutor’s arguments but he had failed to specify them. However, in his appeal the applicant’s lawyer had only presented documents concerning the applicant’s personal situation, references from different institutions and a request for bail. All of those submissions had been already examined and taken into consideration by the first-instance court. 83. The Government concluded that the applicant had been brought before a judge as required by Article 5 § 3 and that the proceedings of 27 December 2010 had been in conformity with the requirements of the aforementioned provision. 84. In their oral submissions they further noted that given that the domestic court had decided on the applicant’s detention within the framework of the first criminal case, it was inexpedient and pointless to choose the same preventive measure within the second set of criminal proceedings against the applicant. Furthermore, on 29 December 2010 both criminal cases were joined. b. The Court’s assessment i. Review of the lawfulness of the applicant’s arrest 85. The Court reiterates that one of the requirements of Article 5 § 3 is that judicial control of detention must be automatic. It cannot be made to depend on a previous application by the detained person. Such a requirement would not only change the nature of the safeguard provided for under Article 5 § 3, a safeguard distinct from that found in Article 5 § 4, which guarantees the right to institute proceedings to have the lawfulness of detention reviewed by a court. It might even defeat the purpose of the safeguard under Article 5 § 3, which is to protect the individual from arbitrary detention by ensuring that an act of deprivation of liberty is subject to independent judicial scrutiny (see Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999 ‑ III). 86. In the circumstances of the present case it should be noted that following the applicant’s arrest he was brought before a court. That court, despite the applicant’s complaint of unlawful arrest, did not examine the lawfulness of the applicant’s detention and, as the Government maintained, was not supposed to examine it. Furthermore, it does not appear from the case-file materials and the Government’s submissions that the authorities had any intention of ensuring that the applicant was afforded the automatic judicial control of his detention required by Article 5 § 3. In the Court’s opinion, the domestic courts’ decisions referred to by the Government (see paragraphs 43-45 and 51 above) are of no relevance to the applicant’s situation. Therefore, the Court concludes that the applicant was denied the important safeguard of this Convention provision. 87. For the reasons stated above, the Government’s objection based on the argument that it was for the applicant to seek the review of the lawfulness of his arrest should be rejected. 88. The Court accordingly rejects the Government’s objection and concludes that there had been a violation of Article 5 § 3 of the Convention. ii. Judicial order for the applicant’s detention 89. The Court observes that the applicant’s detention in the present case falls within the ambit of Article 5 § 1 (c). In such a situation, when the lawfulness of detention pending investigation and trial is examined, a hearing is normally required. Furthermore, the proceedings must be adversarial and must always ensure equality of arms between the parties – the prosecutor and the detainee. This means, in particular, that the detainee should have access to the documents in the investigation file which are essential for assessing the lawfulness of his detention. The detainee should also have an opportunity to comment on the arguments put forward by the prosecution (see Lebedev v. Russia, no. 4493/04, § 77, 25 October 2007, with further references). 90. In the circumstances of the present case, the Court has already established that the applicant and his lawyer were not informed in advance about the subject of the hearing (see paragraph 77 above). The Court has further observed that in its decision ordering the applicant’s detention the first-instance court did not examine the necessity of the applicant’s deprivation of liberty in a satisfactory manner (see paragraphs 66 to 74 above). Furthermore, the domestic court did not consider the possibility of using measures other than deprivation of liberty, although the applicant’s lawyer did lodge a request for bail. In addition to those shortcomings, the applicant’s request to be afforded appropriate time to study the materials brought forward by the prosecution and to prepare his defence was refused without any justification. The Court cannot accept the Government’s argument that the applicant did not need to review the materials supporting the prosecutor’s application as he was aware of the facts described in the said application. It was for the applicant and his lawyer, and not the authorities, to decide whether or not he needed to study the materials provided in support of his arrest. Such behaviour by the domestic authorities seriously affected the equality of arms between the parties. 91. The Court therefore concludes that the proceedings concerning the change of preventive measure applied to the applicant did not comply with the requirements of Article 5 § 3 and that there has also been a violation of this provision in this respect. 4. Article 5 § 4 of the Convention 92. The applicant maintained that he had been denied access to the documents presented by the prosecution in support of their application for his detention and that the court of appeal had not explained in its decision the reasons for refuting his arguments. 93. The Government maintained that the applicant had had an effective appeal procedure against the order for his detention and he had availed himself of that remedy. The Government also disagreed with the applicant’s contention that he had been denied access to the materials presented in support of his detention, as he had not lodged any motion for such access. 94. The Government considered that the court of appeal had properly assessed all the arguments made by the applicant and his complaints of procedural violations. They noted that the first-instance court had examined the applicant’s submissions and complaints and had rejected them and the court of appeal had upheld the decision of the first-instance court, having agreed with its findings and having examined whether the decision of 27 December 2010 had been adopted in violation of criminal procedural law. Therefore, the Government considered that the Kyiv City Court of Appeal had properly assessed all of the applicant’s arguments and that there had not been a violation of the applicant’s rights under Article 5 § 4 of the Convention in the present case. 95. The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review of the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of the deprivation of their liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law, but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR 2002-II, and Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, § 70, 27 November 2008). 96. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question. Thus, the proceedings must be adversarial and must always ensure “equality of arms” between the parties (see A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 203 - 204, ECHR 2009 ‑ .... with further references). Equality of arms is not ensured if the defending party is denied access to those documents which are essential in order to raise an effective challenge to the lawfulness of his detention (see, mutatis mutandis, Fodale v. Italy, no. 70148/01, § 41, ECHR 2006 ‑ VII). It may also be essential that the individual concerned should not only have the opportunity to be heard in person but that he should also have the effective assistance of his lawyer (see Bouamar v. Belgium, 29 February 1988, § 60, Series A no. 129). 97. In the present case, the applicant appealed against the decision ordering his detention and made a number of complaints challenging both the fairness of the procedure before the first-instance court and the grounds for his arrest advanced by the prosecution and endorsed by that court (see paragraph 33 above). In its decision of 5 January 2011 the Kyiv Court of Appeal rejected the applicant’s appeal without giving a proper reply to his arguments, which in the Court’s opinion appear to be pertinent and worthy of appropriate examination and substantive reply. Neither did it give an adequate response to the request signed by the Members of Parliament and supported by the Ombudsman for the applicant’s release on bail. The domestic court, however, limited itself to repeating the reasoning of the first-instance court and rejecting the applicant’s complaints as unsubstantiated. 98. The Court also notes that in its further decision of 21 April 2011 the same court of appeal prolonged the applicant’s detention, even though the applicant had completed his study of the case-file materials, which had been the principal reason advanced by the investigating authorities for deprivation of the applicant’s liberty. 99. The foregoing considerations are sufficient to enable the Court to conclude that the applicant was not afforded proper judicial review of the lawfulness of his detention. There has accordingly been a violation of Article 5 § 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 100. In his submissions to the Court, the applicant complained that the proceedings against him and his arrest were used by the authorities to exclude him from political life and from participation in upcoming parliamentary elections. The applicant did not refer to any Convention provision. The Court considers that this complaint shall be considered under Article 18 of the Convention, which provides: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” A. Parties’ observations 101. The Government considered that this provision was not applicable in the present case, given that the applicant’s deprivation of liberty had been effected for the sole purpose of Article 5. They further noted that the applicant did not invoke Article 18 in his application to the Court and the only allegation of possible political pressure had been made by the applicant in his request for priority. They noted that the applicant made only general remark about hypothetical pressure on him and therefore this issue cannot be considered by the Court. They further reiterated that the status of a politician could not grant him or her immunity from criminal prosecution. The Government observed that the applicant had been deprived of his liberty in connection with the criminal proceedings instituted against him. The criminal offences with which he had been charged were defined in the relevant provisions of the Criminal Code. The prosecuting authorities had conducted an investigation in connection with the suspicion that the applicant had committed serious crimes and, as a result, more than forty-seven volumes comprising the criminal case file, together with the indictment, had been forwarded by the prosecuting authorities to the court. On 23 May 2011 the court had held a preliminary hearing in the criminal case against the applicant. Furthermore, the applicant’s behaviour during the period when he was at large had given sufficient grounds to believe that he had been attempting to influence the investigation and to obstruct the establishment of the truth in the case. Therefore, the Government considered that the purposes behind the deprivation of the applicant’s liberty had been exclusively those envisaged by Article 5 § 1 (c) of the Convention. 102. They reiterated that the fact of the applicant’s active political life and his submissions of numerous breaches of procedural legislation which had allegedly been committed by the domestic authorities in the proceedings against him and referred to in his application to the Court could not as such form the basis of an argument that the restriction on his Convention rights had been imposed for ulterior purposes. The Government noted that apart from the aforementioned facts, there was no evidence that the reason for the applicant’s detention had been his activities as a political figure and a member of the party in opposition to the Government as opposed to the existing suspicion of his having committed a crime. The Government, therefore, considered this complaint unsubstantiated in view of the lack of evidence suggesting that the domestic authorities, in deciding to deprive the applicant of his liberty, had proceeded on the basis of political motives. 103. The applicant submitted that he had been a professional politician for the past twenty years. He was considered as one of two of the most prominent opposition leaders. The accusations against him were related to his political activities as a Minister of the Interior and did not indicate any personal benefits in his actions. The applicant noted that the media was full of pictures of him behind bars, which was done to plant in the public opinion the idea that he was a dangerous criminal. He further referred to the prosecution of the opposition by those in power, which had been noted by many domestic and international observers. B. The Court’s assessment 104. The Court will first examine the Government’s objections. The Court notes that the circumstances of the case suggest that soon after the change of power, the applicant, who was one of the former Government ministers and the leader of the popular political party, had been accused of abuse of power and prosecuted. This happened in the context, which the external observers described as politically motivated prosecution of the opposition leaders. The applicant’s case, along with the case of the former Prime-Minister Tymoshenko, attracted important attention both nationally and internationally. In these circumstances, the applicant’s submissions made at the initial stage as to the possible political pressure on him before the upcoming elections, as well as his complaint that one of the reasons for his detention had been his communication with the media and his public disagreement with the accusations against him, are sufficient reasons to examine the issue of the applicant’s detention from the viewpoint of Article 18. Therefore, the Court concludes that in his factual and legal submissions the applicant raised in substance the complaint that his arrest and detention had had ulterior motives. 105. The Court notes in this respect that Article 18 of the Convention does not have an autonomous role and can only be applied in conjunction with other Articles of the Convention ( Gusinskiy v. Russia, no. 70276/01, § 75, ECHR 2004-IV). In the light of the foregoing, the Court will consider the applicant’s allegations under Article 18 of the Convention in conjunction with his complaints under Article 5 of the Convention, cited above. 106. The Court reiterates that the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. Indeed, any public policy or an individual measure may have a “hidden agenda”, and the presumption of good faith is rebuttable. However, an applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed (or as can be reasonably inferred from the context). A mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention is not sufficient to prove that Article 18 was breached. Furthermore, high political status does not grant immunity ( Khodorkovskiy v. Russia, no. 5829/04, §§ 255 and 258, 31 May 2011). 107. When an allegation under Article 18 is made, the Court applies a very exacting standard of proof. As a consequence, there are only few cases where a breach of that Convention provision has been found. Thus, in Gusinskiy v. Russia (cited above, § 73–78), the Court accepted that the applicant’s liberty had been restricted, inter alia, for a purpose other than those mentioned in Article 5. The Court in that case based its findings on an agreement signed between the detainee and a federal Minister for the Press. It was clear from that agreement that the applicant’s detention had been applied in order to make him sell his media company to the State. In Cebotari v. Moldova (no. 35615/06, §§ 46 et seq., 13 November 2007) the Court found a violation of Article 18 of the Convention in circumstances where the applicant’s arrest was visibly linked to an application pending before the Court. 108. The Court notes that when it comes to allegations of political or other ulterior motives in the context of criminal prosecution, it is difficult to dissociate the pre-trial detention from the criminal proceedings within which such detention had been ordered. The circumstances of the present case suggest, however, that the applicant’s arrest and detention, which were ordered after the investigation against the applicant had been completed, had their own distinguishable features which allow the Court to look into the matter separately from the more general context of politically motivated prosecution of the opposition leader. In the present case, the Court has already established that the grounds advanced by the authorities for the deprivation of the applicant’s liberty were not only incompatible with the requirements of Article 5 § 1 but were also against the spirit of the Convention (see paragraphs 66 to 73 above). In this context, the Court observes that the profile of the applicant, one of the opposition leaders who had communicated with the media, plainly attracted considerable public attention. It can also be accepted that being accused of abuse of office, he had the right to reply to such an accusation through the media. The prosecuting authorities seeking the applicant’s arrest explicitly indicated the applicant’s communication with the media as one of the grounds for his arrest and accused him of distorting public opinion about crimes committed by him, discrediting the prosecuting authorities and influencing the upcoming trial in order to avoid criminal liability (see paragraph 26 above). 109. In the Court’s opinion, such reasoning by the prosecuting authorities clearly demonstrates their attempt to punish the applicant for publicly disagreeing with accusations against him and for asserting his innocence, which he had the right to do. In such circumstances, the Court cannot but find that the restriction of the applicant’s liberty permitted under Article 5 § 1 (c) was applied not only for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, but also for other reasons. 110. There has accordingly been a violation of Article 18 of the Convention taken in conjunction with Article 5. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 111. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 112. The applicant claimed that he sustained non-pecuniary damage, but left it to the Court’s discretion to fix the appropriate amount of compensation. 113. The Government considered that the applicant’s claim ought to be rejected as lacking in specification and unsubstantiated. 114. The Court, deciding in equity, awards the applicant 15,000 euros (EUR) in respect of non-pecuniary damage. B. Costs and expenses 115. The applicant made no claim under this head. Accordingly the Court makes no award. C. Default interest 116. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been several violations of Article 5 of the Convention, finding in particular that the applicant’s arrest had been arbitrary, that no valid reasons had been given for his detention, that he had not been duly informed of the reasons for his detention, and that the lawfulness of his arrest and detention had not been properly reviewed. It also held that there had been a violation of Article 18 in conjunction with Article 5, finding that the restriction on the applicant’s liberty had been imposed not only for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, but also for other illegitimate reasons. In this respect, it noted in particular that, being accused of abuse of office, the applicant had the right to reply to such an accusation via the media. The prosecuting authorities had further indicated his communication with the media as one of the grounds for his arrest. They had accused him of distorting public opinion concerning the offences with which he had been charged, of discrediting the prosecuting authorities and of influencing the upcoming trial in order to avoid criminal liability. In the Court’s opinion, such reasoning clearly demonstrated the authorities’ attempt to punish the applicant for publicly disagreeing with accusations against him and for asserting his innocence. |
695 | Agitation against a national or ethnic group | II. RELEVANT DOMESTIC LAW AND PRACTICE 18. Chapter 16, Article 8 of the Penal Code ( Brottsbalken, SFS 1962:700) provides that a person who, in a disseminated statement or communication, threatens or expresses contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin, religious beliefs or sexual orientation, should be convicted of agitation against a national or ethnic group. The offence carries a penalty of up to two years’ imprisonment. If the offence is considered minor the penalty is a fine, and if it is considered to be aggravated the penalty is imprisonment for no less than six months and no more than four years. 19. Agitation against homosexuals as a group was made a criminal offence by an amendment of the law that came into effect on 1 January 2003. According to the preparatory work on that amendment, as reproduced in Government Bill 2001/02:59 (pp. 32-33), homosexuals constitute an exposed group which is often subjected to criminal acts because of their sexual orientation, and national socialist and other racist groups agitate against homosexuals and homosexuality as part of their propaganda. The preparatory work also stated that there were good reasons to assume that the homophobic attitude that had caused certain offenders to attack individuals on account of their sexual orientation derived from the hate, threat and inflammatory propaganda against homosexuals as a group that was spread by the majority of Nazi and other right-wing extremist groups in the country. 20. The Supreme Court, in its judgment of 29 November 2005 (case NJA 2005 p. 805) concerning statements made by a pastor during a sermon which were deemed to have expressed contempt for homosexuals as a group within the meaning of Chapter 16, Article 8 of the Penal Code, considered that the legislation was in accordance with the Convention. However, the Supreme Court found that, the word “contempt” in the provision regarding incitement against a group had to be interpreted more restrictively than the preparatory work appeared to indicate if an application of the provisions that was in line with the Convention was to be achieved. The Supreme Court then found that an application of the provision that was in line with the Convention would not permit a judgment convicting the defendant, given the circumstances of the case, and rejected the charges. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 21. The applicants complained that the judgment of the Supreme Court constituted a violation of their freedom of expression as protected by Article 10 of the Convention, which reads, in its relevant parts, as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, ...” A. Admissibility 22. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The submissions of the parties (a) The applicants 23. The applicants maintained that their conviction constituted an unjustified interference with their right to freedom of expression under Article 10 § 1 of the Convention. 24. They also argued, albeit in conjunction with their complaint under Article 7, that the law on agitation against a national or ethnic group was so unclear that it was not possible for them to ascertain whether or not their act was criminal. 25. Further, in the applicants’ view, the text in the leaflets was not disparaging or insulting to homosexuals and hence could not justify a restriction of their right to freedom of expression pursuant to Article 10 § 2. 26. The applicants contended that the wording in the leaflets was not hateful and did not encourage anyone to commit hateful acts. In their view, the leaflets rather encouraged the pupils to discuss certain matters with their teachers and provided them with arguments to use in these discussions. 27. They further submitted that freedom of speech should be limited only in its content and not as regards how and where it was exercised, pointing out that they were found guilty for agitation against a national or ethnic group and not for trespassing or littering. 28. In this connection they did not consider Swedish schools to be relatively sheltered from the political actions of outsiders. On the contrary, they alleged that Swedish schools had a tradition of letting political youth parties spread their messages, especially during election years. 29. The applicants further stated that the pupils at the school in question were between the ages of 16 and 19 and hence of an age to understand the content of the leaflets. 30. Lastly, they emphasised that their case should be compared to the Swedish case NJA 2005 p. 805, in which a pastor who had offended homosexuals in a sermon was acquitted by the Supreme Court of agitation against a national or ethnic group with reference to Articles 9 and 10 of the Convention. (b) The Government 31. The Government agreed that Article 10 of the Convention was applicable to the present case and that the criminal conviction of the applicants constituted an interference with their right to freedom of expression as prescribed under the second section of that Article. However, the Government submitted that the criminal conviction and the sentence imposed were proportionate to the legitimate aims pursued, and thus necessary in a democratic society. 32. The Government stressed that the applicants were convicted of the crime of agitation against a national or ethnic group, in accordance with Chapter 16 Section 8 of the Penal Code, and that all five justices of the Supreme Court reached the conclusion that this penalty was prescribed by law within the meaning of Article 10 § 2 of the Convention. 33. The Government also contended that the interference with the applicants’ right to freedom of expression served legitimate aims within the meaning of Article 10 § 2, with particular emphasis on “the protection of the reputation or rights of others”, that is, homosexuals as a group. 34. In the Government’s opinion several factors in the present case called for the conclusion that the domestic courts enjoyed a particularly wide margin of appreciation when examining the issue of whether the applicants’ conviction was proportionate to the legitimate aims pursued. They also argued that the same factors should be taken into account when examining whether the interference was necessary in a democratic society. 35. In this regard, the Government first pointed out that the circumstances of the present case differed from those prevailing in several of the cases where the Court had ruled on the proportionality of measures interfering with the right to freedom of expression under Article 10. Many of those cases had dealt with the conviction of journalists and editors who had written or published “defamatory” statements in newspaper articles. The Government thus submitted that the Court’s abundant case-law insisting on the essential role of a free press and of the press as a “public watchdog” was not of immediate relevance to the present case. 36. Secondly, the Government argued that it followed from the Court’s case-law that the limits of acceptable criticism were wider as regards, for example, governments, politicians or similar actors in the public domain than for private individuals. In the Government’s view, there was no reason why a group of individuals targeted by certain statements owing to a common denominator which distinguished them from other individuals – for example regarding sexual orientation or religion – should be required to display a greater degree of tolerance than a single individual in the equivalent situation. 37. Thirdly, the Government maintained that a certain distinction should be made between the present case and cases dealing with the area of political speech and statements made in the course of a political debate, where freedom of expression was of the utmost importance and there was little scope for restrictions. The reason for this was that the leaflets were distributed in a school, that is, an environment relatively sheltered from the political actions of outsiders. 38. Fourthly, the Government stressed that the Court had emphasised that balancing individual interests protected under the Convention that might well be contradictory was a difficult matter, and that Contracting States must have a broad margin of appreciation in this regard. 39. The Government also argued that the outcome of the domestic proceedings – where the applicants were convicted by the District Court, acquitted by the Court of Appeal and convicted again by three out of five justices of the Supreme Court with reference to, inter alia, Article 10 § 2 of the Convention – clearly showed that the task of balancing the different interests involved and interpreting Swedish criminal legislation in the light of the Convention and the Court’s case-law had proved particularly difficult and delicate in the present case. They contended that in these circumstances the national authorities, by reason of their direct and continuous contact with the vital forces of their countries, were in a better position than international judges to give an opinion on the exact content of the concept “the protection of the reputation or rights of others” and to assess whether a particular measure would constitute an unjustified interference with the right to freedom of expression under Article 10 § 2. 40. The Government further emphasised that the domestic courts had made a careful and thorough investigation of the requirements of the Convention and the Court’s case-law and had carried out a proportionality test in full conformity with the standards set by the Convention and the principles embodied in Article 10. (c) The third-party intervener 41. INTERIGHTS (the International Centre for the Legal Protection of Human Rights) and the International Commission of Jurists, referring to the Court’s case-law, inter alia, submitted the following. 42. Despite the prevalence of homophobic hate speech, there has been a failure to adopt particularised standards to address the problem, at both the European and the international political level. While the Court has well ‑ developed case-law with respect to permissible restrictions on freedom of expression, it has not had the opportunity to develop a comprehensive approach to hate speech directed against a person or class of persons because of their sexual orientation. The Court has, however, repeatedly held that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour” or sex. The Court has also found incompatible with the Convention laws concerning same-sex conduct, the age of consent, military service, adoption, child custody and inheritance that discriminate on the basis of sexual orientation. 43. When the Court comes to the “proportionality” analysis under Article 10 § 2 of the Convention, the means of communication is a relevant factor, since the impact of speech is proportional to the size of the audience it is likely to reach. It follows that when the impugned speech reaches a wider audience more caution is demanded in using that means of communication. However, as the Court has noted, where children and adolescents are concerned certain restrictive measures may be necessary to prevent pernicious effects on the morals of that group. 44. The present case provides an opportunity for the Court to consolidate an approach to hate speech directed against a person or class of persons because of their sexual orientation that is elaborated in such a way so as to ensure that they are protected from the harmful effects of such expression. A clear analogy can be drawn between racism and xenophobia – which have been the subject matter of much of the Court’s jurisprudence – and sexual orientation. 45. Sexual orientation should be treated in the same way as categories such as race, ethnicity and religion which are commonly covered by hate-speech and hate-crime laws, because sexual orientation is a characteristic that is fundamental to a person’s sense of self. It is, moreover, used as a marker of group identity. 46. When a particular group is singled out for victimisation and discrimination, hate-speech laws should protect those characteristics that are essential to a person’s identity and that are used as evidence of belonging to a particular group. Restrictions on freedom of expression must therefore be permissible in instances where the aim of the speech is to degrade, insult or incite hatred against persons or a class of person on account of their sexual orientation, so long as such restrictions are in accordance with the Court’s well-established principles. 2. The Court’s assessment 47. The Court finds, and this is common ground between the parties, that the applicants’ conviction amounted to an interference with their freedom of expression as guaranteed by Article 10 § 1 of the Convention. 48. Such an interference will infringe the Convention if it does not meet the requirements of Article 10 § 2. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve those aims. (a) Lawfulness and legitimate aim 49. The Court observes that the applicants were convicted of agitation against a national or ethnic group in accordance with Chapter 16, Article 8 of the Swedish Penal Code (see paragraph 18 above), which at the time of the alleged crime included statements that threatened or expressed contempt for a group of people with reference to their sexual orientation. The Court hence considers that the impugned interference was sufficiently clear and foreseeable and thus “prescribed by law” within the meaning of the Convention. The Court further considers that the interference served a legitimate aim, namely “the protection of the reputation and rights of others”, within the meaning of Article 10 § 2 of the Convention. (b) Necessity of the interference 50. It remains for the Court to consider whether the interference was “necessary in a democratic society”. 51. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. In this respect, the Contracting States enjoy a margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 68, ECHR 2004 ‑ XI). 52. In reviewing under Article 10 the decisions taken by the national authorities pursuant to their margin of appreciation, the Court must determine, in the light of the case as a whole, including the content of the comments held against the applicants and the context in which they made them, whether the interference at issue was “proportionate” to the legitimate aim pursued and whether the reasons adduced by them to justify the interference are “relevant and sufficient” (see, among other authorities, Pedersen and Baadsgaard, cited above, §§ 69 and 70, and Kobenter and Standard Verlags GmbH v. Austria, no. 60899/00, § 29, 2 November 2006). 53. The Court further reiterates that freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Pedersen and Baadsgaard, cited above, § 71). 54. The Court notes that the applicants distributed the leaflets with the aim of starting a debate about the lack of objectivity of education in Swedish schools. The Court agrees with the Supreme Court that even if this is an acceptable purpose, regard must be paid to the wording of the leaflets. The Court observes that, according to the leaflets, homosexuality was “a deviant sexual proclivity” that had “a morally destructive effect on the substance of society”. The leaflets also alleged that homosexuality was one of the main reasons why HIV and AIDS had gained a foothold and that the “homosexual lobby” tried to play down paedophilia. In the Court’s opinion, although these statements did not directly recommend individuals to commit hateful acts, they are serious and prejudicial allegations. 55. Moreover, the Court reiterates that inciting to hatred does not necessarily entail a call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner (see Féret v. Belgium, no. 15615/07, § 73, 16 July 2009). In this regard, the Court stresses that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour” (see, inter alia, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 97, ECHR 1999 ‑ VI). 56. The Court also takes into consideration that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 52, Series A no. 24). Moreover, the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access. 57. In considering the approach of the domestic courts when deciding whether a “pressing social need” existed, and the reasons the authorities adduced to justify the interference, the Court observes the following. The Supreme Court acknowledged the applicants’ right to express their ideas while at the same time stressing that along with freedoms and rights people also have obligations; one such obligation being, as far as possible, to avoid statements that are unwarrantably offensive to others, constituting an assault on their rights. The Supreme Court thereafter found that the statements in the leaflets had been unnecessarily offensive. It also emphasised that the applicants had left the leaflets in or on the pupils’ lockers, thereby imposing them on the pupils. Having balanced the relevant considerations, the Supreme Court found no reason not to apply the relevant Article of the Penal Code. 58. Finally, an important factor to be taken into account when assessing the proportionality of an interference with freedom of expression is the nature and severity of the penalties imposed (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; and Skaÿka v. Poland, no. 43425/98, §§ 41 ‑ 42, 27 May 2003). The Court notes that the applicants were not sentenced to imprisonment, although the crime of which they were convicted carries a penalty of up to two years’ imprisonment. Instead, three of them were given suspended sentences combined with fines ranging from approximately EUR 200 to EUR 2,000, and the fourth applicant was sentenced to probation. The Court does not find these penalties excessive in the circumstances. 59. Having regard to the foregoing, the Court considers that the conviction of the applicants and the sentences imposed on them were not disproportionate to the legitimate aim pursued and that the reasons given by the Supreme Court in justification of those measures were relevant and sufficient. The interference with the applicants’ exercise of their right to freedom of expression could therefore reasonably be regarded by the national authorities as necessary in a democratic society for the protection of the reputation and rights of others. 60. The foregoing considerations are sufficient to enable the Court to conclude that the application does not reveal a violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 61. The applicants complained that they were convicted of a crime not prescribed by law. They relied on Article 7 of the Convention, which reads, in so far as relevant, as follows: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. ... “ 62. Having regard to the finding under Article 10 that the measure complained of was “prescribed by law” within the meaning of the Convention (see paragraph 49 above), the Court finds that this part of the application should be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 a) and 4 of the Convention. | The Court found that these statements had constituted serious and prejudicial allegations, even if they had not been a direct call to hateful acts. The Court stressed that discrimination based on sexual orientation was as serious as discrimination based on race, origin or colour. It concluded that there had been no violation of Article 10 (freedom of expression) of the Convention, as the interference with the applicants’ exercise of their right to freedom of expression had reasonably been regarded by the Swedish authorities as “necessary in a democratic society” for the protection of the reputation and rights of others. |
862 | Video surveillance | II. RELEVANT DOMESTIC LAW A. Constitution of Montenegro 2007 ( Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 01/07) 18. Article 40 provides that everyone has the right to respect for their private and family life. 19. Article 43 provides that everyone has the right to be informed about the gathering of personal data about them and the right to judicial protection in case of misuse. 20. Article 28 § 2 guarantees, inter alia, privacy and personal rights. 21. Article 24 § 1 provides that guaranteed human rights and freedoms can be restricted only by law, to the extent allowed by the Constitution and as far as is necessary in an open and democratic society to serve the purpose for which the restriction was allowed. 22. Article 149 provides that the Constitutional Court rules on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution after all other effective legal remedies have been exhausted. 23. The Constitution entered into force on 22 October 2007. B. The Personal Data Protection Act ( Zakon o zaštiti podataka o ličnosti; published in the OGM nos. 79/08, 70/09 and 44/12) 24. Section 10 provides that personal data can be processed only after consent has been obtained from the person whose data are to be processed and the consent can be withdrawn at any time. 25. Section 21 provides that the person responsible for handling the data that has been gathered must inform the person involved about, inter alia, the legal grounds and purpose of the gathering of the data and about the right of access to the information. 26. Section 35(1) provides that public institutions ( javni sektor ) can carry out video surveillance of an area of access ( pristup ) to official premises. 27. Section 36 provides that video surveillance can be carried out in official or business premises to ensure the safety of people or property or for the protection of confidential data if that cannot be achieved in any other way. 28. Section 48 provides that the person responsible for handling any data that has been collected is also responsible for any damage caused by a violation of the rights provided for by the Act, in accordance with the general rules on compensation for damage. 29. Sections 49 - 73a provide details about the Agency and its supervisory activities ( nadzor ). 30. Section 49, 51 and 52 define the Agency as an independent supervisory body ( nadzorni organ ), composed of the Agency Council and the director. The Agency Council has a president and two members, who are all appointed by Parliament and who answer to Parliament. 31. Section 50 provides that the Agency oversees ( vrši nadzor ) the implementation of personal data protection in accordance with the Act; decides on requests for data protection; gives opinions on the implementation of the Act; gives consent related to creating collections ( uspostavljanje zbirki ) of personal data; gives its opinion on whether a certain amount of personal data can be considered as “collection” within the meaning of the Act; monitors the implementation of organisational and technical measures for personal data protection; makes proposals and recommendations for the improvement of personal data protection; gives its opinion on whether a certain way of processing personal data ( obrada ) endangers rights and freedoms; cooperates with bodies from other countries in charge of personal data protection; cooperates with competent State bodies in preparing regulations relating to personal data protection; gives assessments of the constitutionality and legality of Acts and other regulations relating to personal data processing; as well as other functions in accordance with the Act and the Free Access to Information Act. 32. Sections 56-72 provide that the Agency performs its supervisory function through inspectors ( kontrolori ), who make reports ( zapisnik ) on their work. Parties can file an objection ( prigovor ) against the inspectors ’ reports and the Agency Council must rule thereon. By means of its decisions the Agency can, inter alia, order that irregularities in personal data processing be removed within a certain time; temporarily prohibit personal data processing when it is contrary to the Act; and order that personal data which have been collected without legal grounds be erased. An administrative dispute can be initiated against the Agency ’ s decisions. C. The Obligations Act 2008 ( Zakon o obligacionim odnosima; published in the OGM nos. 47/08 and 04/11) 33. Sections 151, 206 and 207 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of damage to his or her reputation or a breach of personal integrity, liberty or other personal rights ( prava ličnosti ) is entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary relief. 34. Section 166 provides, inter alia, that a legal entity ( pravno lice ), which includes the State, is liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or acts related thereto. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 35. The applicants complained under Article 8 of the Convention that the alleged unlawful installation and use of video surveillance equipment in the university auditoriums where they held classes had violated their right to respect for their private life. The relevant Article reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 36. The Government contested that argument. A. Admissibility 1. The parties ’ submissions 37. The Government submitted that not all professional and business activities fell within the ambit of private life. The university was a public institution and teaching was an activity of public interest ( djelatnost od javnog interesa ). The area that had been under surveillance was a working area outside the scope of personal autonomy, unlike professors ’ offices, where a certain amount of personal autonomy could exist. 38. They further maintained that the applicants had failed to exhaust all the effective domestic remedies, notably a constitutional appeal. 39. The applicants contested the Government ’ s submissions. In particular, they averred that a constitutional appeal was not an effective remedy at the relevant time. 2. The Court ’ s assessment (a) Applicability of Article 8 40. The relevant principles in this regard are set out, for example, in Niemietz v. Germany (16 December 1992, §§ 29-31, Series A no. 251 ‑ B); Peck v. the United Kingdom (no. 44647/98, §§ 57-58, ECHR 2003 ‑ I); Halford v. the United Kingdom (25 June 1997, §§ 44-46, Reports of Judgments and Decisions 1997 ‑ III); Fernández Martínez v. Spain [GC] (no. 56030/07, §§ 109-110, ECHR 2014 (extracts)); and Bărbulescu v. Romania [GC] (no. 61496/08, §§ 70-73, 5 September 2017). 41. In particular, the Court reiterates that “private life” is a broad term not susceptible to exhaustive definition and that it would be too restrictive to limit the notion of “private life” to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle (see Niemietz, cited above, § 29). Article 8 thus guarantees a right to “private life” in the broad sense, including the right to lead a “private social life”, that is, the possibility for the individual to develop his or her social identity. In that respect, the right in question enshrines the possibility of approaching others in order to establish and develop relationships with them (see Bărbulescu, cited above, § 70, and the authorities cited therein). 42. The Court has already held that the notion of “private life” may include professional activities or activities taking place in a public context (see Bărbulescu, cited above, § 71, and the authorities cited therein). It is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity to develop relationships with the outside world, and it is not always possible to distinguish clearly which of an individual ’ s activities form part of his professional or business life and which do not (see Niemietz, cited above, § 29). There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see Peck, cited above, § 57), professional life being part of it (see Fernández Martínez, cited above, § 110 in fine ). 43. In order to ascertain whether the notion of “private life” is applicable, the Court has on several occasions examined whether individuals had a reasonable expectation that their privacy would be respected and protected. In that context, it has stated that a reasonable expectation of privacy is a significant though not necessarily conclusive factor (see Bărbulescu, cited above, § 73, and the authorities cited therein). 44. Turning to the present case, the Court notes that university amphitheatres are the workplaces of teachers. It is where they not only teach students, but also interact with them, thus developing mutual relations and constructing their social identity. It has already been held that covert video surveillance of an employee at his or her workplace must be considered, as such, as a considerable intrusion into the employee ’ s private life. It entails the recorded and reproducible documentation of a person ’ s conduct at his or her workplace, which the employee, being obliged under the employment contract to perform the work in that place, cannot evade (see Köpke v. Germany ( dec. ), no. 420/07, 5 October 2010). There is no reason for the Court to depart from that finding even where it concerns cases of non ‑ covert video surveillance of an employee at his or her workplace. Furthermore, the Court has also held that even where the employer ’ s regulations in respect of the employees ’ private social life in the workplace are restrictive they cannot reduce it to zero. Respect for private life continues to exist, even if it might be restricted in so far as necessary (see Bărbulescu, cited above, § 80). 45. In view of the above, the Court considers that the data collected by the impugned video surveillance related to the applicants ’ “private life”, thus making Article 8 applicable to their complaint. ( b ) Exhaustion of domestic remedies 46. The relevant principles in this regard are set out in Vučković and Others v. Serbia (preliminary objection) ( [GC], nos. 17153/11 and 29 others, § § 69-75, 25 March 2014 ). 47. Turning to the present case, the Court has already held that as of 20 March 2015 a constitutional appeal in Montenegro can in principle be considered an effective domestic remedy (see Siništaj and Others v. Montenegro, nos. 1451/10 and 2 others, § 123, 24 November 2015). The Court reiterates in this regard that, while it can be subject to exceptions which might be justified by the specific circumstances of each case, the issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). Given that the applicants lodged their application in October 2013, which was long before the constitutional appeal became an effective domestic remedy in the respondent State, the Court considers that they were not required to avail themselves of that particular remedy (see Siništaj and Others, cited above, §§ 124-125). The Government ’ s objection must therefore be dismissed. ( c ) The Court ’ s conclusion 48. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions ( a ) The applicants 49. The applicants submitted that the impugned video surveillance had been unlawful, had not pursued any legitimate aim and had not been necessary in a democratic society. The Dean of the School had collected and processed the data obtained thereby without any restriction and the applicants had had no effective control over that information. The Agency had also failed to live up to its legal obligations, thus in addition making the interference arbitrary. ( b ) The Government 50. The Government submitted that surveillance over activities that took place in public or with photographic equipment was not considered to be an interference with a person ’ s private life unless it was disclosed or published, which was not the case here. 51. They further submitted that the impugned interference, in spite of certain administrative failures ( i pored određenih administrativnih propusta ), had been lawful, had pursued a legitimate aim, and had been necessary in a democratic society. 52. The aim that had been pursued, which could not have been achieved in a less invasive manner, had been the prevention and investigation of safety-related incidents, such as thefts and burglaries, in which property belonging to both the university and its employees, including professors, had been stolen. It had also aimed at preventing the bringing in of firearms, “the unauthorised bringing in of animals”, begging, as well as incidents in the amphitheatres in which professors had been threatened with physical violence. Even the police had recommended the installation of video surveillance equipment. 53. They further maintained that all the people involved, including the applicants, had been duly informed of the measure, that the data collected had not been misused in any way and that only the Dean of the School had had access to it. The data had therefore been used exclusively for the purposes provided for by the law and within a limited period, given that the data had been automatically deleted after thirty days. The Government further submitted that the cameras had taken low - resolution pictures, had had no zoom capacity, and that their location and angles of recording had been set up “in accordance with a methodological risk analysis, but also with personal data protection”. 54. The Government averred that States had a wide margin of appreciation when it came to video surveillance in the public interest, and the respondent State had acted in accordance with both national and European legal standards. In any event, it was not the Court ’ s task to assess the interpretation and application of national law by the domestic courts, nor their findings and conclusions, and the domestic courts had found no violation of the applicants ’ right to respect for their private life. 2. The Court ’ s assessment 55. The Court has already held in the present case that video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee ’ s private life (see paragraph 44 above), and hence it considers that it constitutes an interference within the meaning of Article 8. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one of more of the legitimate aims to which that provision refers and is necessary in a democratic society in order to achieve any such aim (see Vukota-Bojić v. Switzerland, no. 61838/10, § 60, 18 October 2016). 56. The Court notes that the domestic courts did not examine the question of the acts being in accordance with the law given that they did not consider the impugned video surveillance to be an interference with the applicants ’ private life in the first place. 57. However, the Personal Data Protection Agency did and in doing so explicitly held that it was not in accordance with the law, notably sections 10, 35 and 36 of the Personal Data Protection Act (see paragraph 11 above). 58. The Court observes in that respect that section 35 provides that public institutions – the university, according to the Government ’ s own submission, being one of them – can carry out video surveillance of areas of access to official premises. However, in the present case the video surveillance was carried out in the amphitheatres. 59. Moreover, section 36 provides that video surveillance equipment can also be installed in official or business premises, but only if the aims provided for by that section, notably the safety of people or property or the protection of confidential data, cannot be achieved in any other way. The Court observes that video surveillance was introduced in the present case to ensure the safety of property and people, including students, and for the surveillance of teaching. It is noted that one of those aims, notably the surveillance of teaching, is not provided for by the law at all as a ground for video surveillance. Furthermore, the Agency explicitly held that there was no evidence that either property or people had been in jeopardy, one of the reasons to justify the introduction of video surveillance (see paragraph 11 above), and the domestic courts did not deal with that issue at all (see paragraph 14 in fine above). The Government, for their part, neither provided any evidence to the contrary in that regard (see paragraph 5 2 above) nor showed that they had even considered any other measure as an alternative beforehand. 60. Given that the relevant legislation explicitly provides for certain conditions to be met before camera surveillance is resorted to, and that in the present case those conditions have not been met, and taking into account the decision of the Agency in this regard ( in the absence of any examination of the question by the domestic courts ), the Court cannot but conclude that the interference in question was not in accordance with the law, a fact that suffices to constitute a violation of Article 8. Having regard to the foregoing conclusion, the Court does not consider it necessary to examine whether the other requirements of paragraph 2 of Article 8 were complied with (see Amann v. Switzerland [GC], no. 27798/95, § 81, ECHR 2000 ‑ II, and Vukota-Bojić, cited above, § 78). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 62. The applicants claimed 1,000 euros (EUR) each in respect of non ‑ pecuniary damage. 63. The Government contested the applicants ’ claim. 64. The Court awards the applicants EUR 1,000 each in respect of non ‑ pecuniary damage. B. Costs and expenses 65. The applicants also claimed EUR 1,312.50 for the costs and expenses incurred before the domestic courts and EUR 357 for those incurred before the Court. 66. The Government contested the applicants ’ claim. 67. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the entire sum of EUR 1,669.5 covering costs under all heads. C. Default interest 68. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the camera surveillance had not been in accordance with the law. It first rejected the Government’s argument that the case was inadmissible because no privacy issue had been at stake as the area under surveillance had been a public, working area. In this regard the Court noted in particular that it had previously found that private life might include professional activities and considered that was also the case with the applicants. Article 8 was therefore applicable. On the merits of the case, the Court then found that the camera surveillance had amounted to an interference with the applicants’ right to privacy and that the evidence showed that that surveillance had violated the provisions of domestic law. Indeed, the domestic courts had never even considered any legal justification for the surveillance because they had decided from the outset that there had been no invasion of privacy. |
123 | Interview without parental consent | RELEVANT LEGAL FRAMEWORK 22. The relevant provisions of Article 30 of the Constitution on freedom of expression, and in particular paragraphs 6 and 8, are described in Marina v. Romania (no. 50469/14, § 27, 26 May 2020). 23. The relevant provisions of Article 31 of the Constitution on the right to information, and in particular paragraph 3, are described in Roşiianu v. Romania (no. 27329/06, § 24, 24 June 2014). 24. Article 49 § 1 of the Constitution (Protection of children and young people) reads as follows: “(1) Children and young people shall enjoy special protection and assistance in the pursuit of their rights.” 25. Articles 72 and 73 of the Civil Code in force since 1 October 2011 regulate the right to dignity and the right to one’s own image. Article 74 of the Civil Code sets out a list of acts that may be considered as damaging to one’s private life ( pot fi considerate ca atingeri aduse vieţii private ), including broadcasting news or reports in the press or audiovisual media without the agreement of the person concerned. 26. Article 1349 of the Civil Code, on liability in tort, is quoted in Association ACCEPT and Others v. Romania (no. 19237/16, § 40, 1 June 2021). 27. The relevant provisions of the Audiovisual Act (Law no. 504/2002), which were enacted on 11 July 2002 and entered into force on 22 July 2002 upon publication in the Official Journal, Part I no. 534 of 22 July 2002, are partially described in Frăsilă and Ciocîrlan v. Romania (no. 25329/03, § 35, 10 May 2012). 28. The relevant provisions of NAC Decision no. 220/2011 of 24 February 2011 on the Code on the Regulation of Audiovisual Content, published in the Official Journal no. 174 of 11 March 2011, are partially described in Marina (cited above, § 30). 29. In addition, the relevant provisions of Title II “Protection of minors” of NAC Decision no. 220/2011 on the protection of minor children, as in force at the relevant time, read as follows: Chapter 1 - Compliance with minors’ rights in respect of audiovisual programmes Article 2 “Audiovisual media service providers shall respect the principle of the superior interest of the minor.” Article 3 “(1) The minor has the right to the protection of his or her public image, [and] his or her intimate, private and family life. (2) The terms under which the minor can participate in an audiovisual programme shall take into account the age-specific sensibility, vulnerability in general and the minor’s personality, in particular. (3) The right of the minor to his or her private life and private image prevails over the need for information, especially in the case of a minor in a difficult position. ...” Article 5 “(1) Broadcasts of programmes featuring minors aged under 14 which re-enact offences, abuses or dramatic events, shall be prohibited. (2) Audiovisual media service providers shall not broadcast interviews, [or] statements given by a minor under 14 in connection with dramatic events in the community or family that he or she has witnessed. ” Article 7 “(1) The minor, the parents or the legal representative shall be informed about the rights of the minor before he or she is filmed or recorded. (2) Participation of a minor under 14 old in audiovisual programmes, other than cultural events and sports competitions, is possible only with the consent of the latter, or with the parents’ consent or the consent of another legal representative, if applicable.” 30. NAC Decision no. 220/2011 was subsequently amended by NAC Decision no. 141/2013, which introduced the following new provisions: Article 7 1 “(1) News and other information regarding violence in educational institutions shall be broadcast only where accompanied by the school management’s point of view and with the approval of the minor’s parents, or the minor’s legal representative; situations in which the broadcaster acts in the superior interest of the minor, without affecting the minor’s public image or the minor’s right to intimate, private and family life shall be exempted. (2) Images in which minors are involved in scenes of violence or in implicit or explicit sexual scenes of any kind, shall be broadcast only on condition that: a) they serve a justified public interest; b) the broadcaster acts in the superior interest of the minor, with the consent of the parents or the legal representatives; c) the broadcaster shall not broadcast any indication that might lead to the identification of the minors involved. (3) The Internet page where such images are available, or websites that refer to such an Internet page, shall not be referred to.” 31. The relevant provisions of Title III “Protection of human dignity and of the right to one’s own image” of NAC Decision no. 220/2011 read as follows: Article 30 “Audiovisual media service providers are required to respect fundamental human rights and freedoms, [namely] private life, the right to honour and reputation, and a person’s right to their own image.” Article 31 “For the purpose of the present Code, any problems, facts or events which influence a community or society, are considered of justified public interest, in particular if they concern: a) the prevention of or the proof for committing a criminal offence; b) the protection of health or public safety; c) reports of false allegations or cases of incompetence that may be relevant to the public.” Article 32 “(1) No right conferred by law may be exercised in an excessive and unreasonable manner, contrary to good faith in order to harm or defraud another person, or to take advantage of people’s ignorance or good faith. (2) The interest of the public should not be satisfied at any cost; the mere reference to the right to information cannot justify the violation of private life. (3) The right to one’s own image should not hinder finding the truth in issues of justified public concern.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 32. The applicant complained that the national authorities had failed to protect her right to respect for her private life and in particular the right to respect for her image as provided in Article 8 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Admissibility 33. The Government argued that the application was inadmissible for failure to exhaust domestic remedies because the applicant should have instituted civil proceedings to seek to establish the liability of the schoolteachers who had shown hostility towards her following the broadcast by the private television channel of her interview. 34. The applicant’s representative submitted observations outside the relevant time-limit, which were consequently not included in the case file for the consideration of the Court. 35. The Court notes that the applicant instituted civil proceedings for compensation in respect of non-pecuniary damage against the private company X, which held the licence for the television channel that had broadcast the interview conducted with her on 22 October 2012 without prior parental consent (see paragraphs 11-21 above). The Court therefore considers that the applicant has exhausted the available domestic remedies which were apt to offer her redress in relation to her complaint of the violation of her right to privacy by the media exposure (see, mutatis mutandis, Kahn v. Germany, no. 16313/10, § 51, 17 March 2016). 36. In the circumstances of the present case there was, therefore, no reason for the applicant to institute further sets of proceedings in addition to the civil proceedings for compensation in respect of non-pecuniary damage against the private company which held the licence for the television channel. 37. Accordingly, the applicant has exhausted domestic remedies and the Government’s objection must be dismissed. 38. The Court further reiterates that the concept of “private life” extends to aspects relating to personal identity, such as a person’s image. A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image presupposes the right to control the use of that image. Whilst in most cases it involves the possibility for an individual to refuse publication of the image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 87 and 89, 17 October 2019 and, for a case which also concerns the photograph of a child taken without parental consent, see Dupate v. Latvia, no. 18068/11, § 40, 19 November 2020). 39. Accordingly, the Court considers that the broadcast of the interview in the absence of any parental consent encroached on the applicant’s private life, and Article 8 is therefore applicable in the present case. 40. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsArguments by the parties Arguments by the parties Arguments by the parties (a) The applicant 41. The applicant argued that the domestic courts had failed to protect her private life and her right to her image following her exposure on a private television channel, and she provided the Court with a colour printed version of the television channel website showing her face, not covered and not blurred out. (b) The Government 42. The Government points to the fact that the applicant, then a minor, had answered questions asked by a journalist concerning the death of a schoolmate during a school trip. In the present case, therefore, the right to respect for private life had to be seen in the larger context of the freedom of public expression regarding facts of public interest. The domestic court had stated in the final judgment in the case that the applicant’s face had been blurred out by the television channel. It did not therefore appear from the facts of the case that data of a personal character had been exposed. Moreover, the questions that the reporter had asked the applicant concerned the cause of her schoolmate’s death and the guilt of the teachers, and were not related to her private life. Furthermore, the domestic court had emphasised that the subject of the news report, namely the death of a minor during a school trip, was an issue of public interest, so finding out the truth in this respect was justified. 43. Referring to Putistin v. Ukraine (no. 16882/03, 21 November 2013), the Government contended, as regards the protection of an individual’s reputation, that there must also be a sufficient link between the applicant and the alleged attack on reputation. The repercussions on private life should be directly and causally linked to the interview with the applicant. However, the domestic courts had indicated that the negative consequences for the applicant had not been a direct result of the interview, but had been caused by the behaviour of the teachers, who had acted unlawfully and not in accordance with professional standards. For the domestic courts, it was plausible that the consequences would have been similar even if the parents’ consent for the interview had been given. 44. The Government further argued that the final decision of the domestic court not to find against company X fulfilled the conditions of necessity in a democratic society and proportionality in relation to the legitimate aim. Consequently, that decision had not breached the applicant’s rights under Article 8. The Court’s assessment (a) General principles 45. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference. In addition to this negative undertaking, there may be positive obligations inherent in effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves (see, recently, Marina v. Romania, no. 50469/14, § 61, 26 May 2020, and the case ‑ law cited therein). 46. Moreover, individuals who lack legal capacity, such as minor children, are particularly vulnerable; therefore Article 8, as well as other provisions of the Convention, impose on the State the positive obligation to take into account the particular vulnerability of young persons (see, mutatis mutandis, M.G.C. v. Romania, no. 61495/11, § 73, 15 March 2016). 47. The Court starts from the premise that the present case requires an examination of the fair balance that has to be struck between the applicant’s right to the protection of her private life under Article 8 of the Convention and the private broadcasting company and journalists’ right to impart information as guaranteed by Article 10 according to the principles set out in its case-law. In Dupate (cited above, § 46 ), the Court referred to its case-law in which the criteria for balancing the protection of private life against freedom of expression were set out. These criteria include: contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and the circumstances in which images were taken. Where the balancing exercise between the rights protected by Articles 8 and 10 of the Convention has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 87-88, 7 February 2012, with further references). 48. The task of audiovisual media service providers of imparting information necessarily includes “duties and responsibilities”, as well as limits which the media must impose on itself spontaneously. Wherever information bringing into play the image of a person is at stake, journalists are required to take into account, in so far as possible, the impact of the information, pictures or video recordings to be published prior to their dissemination (see, mutatis mutandis, Dupate, cited above, § 47). (b) Application of those principles to the present case 49. The issue in the present case is whether the domestic courts ensured a fair balance between the protection of the applicant’s private life and the right of the opposing party to freedom of expression (see paragraph 47 above). In exercising its supervisory function, the Court’s task is to review, in the light of the case as a whole, whether the decisions that the domestic courts have taken pursuant to their power of appreciation are in conformity with the criteria laid down in the Court’s case-law (see, mutatis mutandis, Dupate, cited above, § 49). Accordingly, the Court will analyse in turn the elements identified as relevant in this regard in its case-law and the domestic courts’ assessment thereof. (i) Subject of the news report and its contribution to a debate of public interest 50. The Court reiterates that in the balancing of interests under Articles 8 and 10 of the Convention, the contribution to a debate of public interest made by the broadcasted news report is an essential criterion (see mutatis mutandis Axel Springer AG, cited above, § 90, with further references). 51. The Court observes that in taking the decision to dismiss the applicant’s claims, the Ploiești Court of Appeal, unlike the District Court, held that company X had not committed an unlawful act when broadcasting the interview with the applicant without parental consent, because the news report that included the interview concerned a subject of public concern, namely deficiencies by the school attended by the applicant in organising a school trip (see paragraphs 18 and 19 above). (ii) The notoriety of the applicant and her prior conduct 52. The Court notes that the applicant, an eleven-year-old pupil at the time of the interview, was not a public or newsworthy figure. On the contrary, she was a minor, and the exercise of the right to the protection of her image was overseen by her parents. Accordingly, the prior consent of the applicant’s parents to the broadcast of the interview was an important element in the assessment of the case (see Reklos and Davourlis v. Greece, no. 1234/05, §§ 41-43, 15 January 2009). (iii) The circumstances in which the images were taken and the content, form and consequences of broadcasting the news report including the interview 53. As regards the conditions under which the interview in question was conducted, the Court observes that the applicant’s parents or legal representative did not at any time give their consent to the broadcast of the interview. A reporter interviewed the applicant, aged eleven at the time, in front of her school, in the absence of her parents, close relatives or teachers, and without obtaining any prior consent from any of them to conduct that interview (see paragraph 7 above). 54. Regarding the lack of prior parental consent to the interview, the Court of Appeal considered that it was hard to believe that even if the parents had given their consent, the adverse behaviour of the teachers towards the applicant would have been different (see paragraph 20 above). However, having regard to the content of the news report on a tragic event involving a child, the Court of Appeal failed to give due consideration to the obligations imposed by Article 8 to protect the applicant’s private life, given also her vulnerability as a child. In particular, the Court of Appeal failed to assess whether the applicant’s image had been effectively protected. In this respect, the prior parental consent had to be considered as a safeguard for the protection of the applicant’s image, rather than as a mere formal requirement. Had the applicant’s mother been made aware of the interview she would have had the possibility to oppose it. 55. Moreover, the Court notes that the Ploiești District Court concluded in its judgment of 10 December 2013 that, regardless of whether the applicant’s face had been blurred out or not when the interview with her was broadcast on television, an issue that was in dispute between the parties, the applicant was easily recognisable on the video recording made available to the court by the defendant private broadcasting company, and she was effectively recognised by her schoolmates and teachers, if only by her voice, which had not been distorted in any way in order to protect her image and privacy (see paragraph 12 above). None of the superior courts that subsequently dealt with the case following the appeal brought by company X against the judgment of 10 December 2013 thoroughly examined the steps that the defendant undertook to protect the identity of the applicant. 56. The Court emphasises that even where a news report makes a contribution to the public debate, the disclosure of private information, such as the identity of a minor who witnessed a dramatic event, must not exceed the latitude accorded to editorial assessment, and has to be justified (see, mutatis mutandis, MGN Limited v. the United Kingdom, no. 39401/04, §§ 147-51, 18 January 2011, and Alkaya v. Turkey, no. 42811/06, §§ 32-36, 9 October 2012). Particular regard has to be had to situations of vulnerability (see Dupate, cited above, § 61). These considerations are all the more compelling in the present case, where the Court expressed doubts as to the contribution to a debate of public interest of the exposure of the opinions of the applicant, a child who did not witness the event in question (see paragraph 6 above). 57. The Court also notes that although the domestic regulatory framework in respect of audiovisual media service providers, and in particular Article 3 § 3 of NAC Decision no. 220/2011, provides that “the right of the minor to his or her private life and private image prevails over the need for information, especially in the case of a minor in a difficult position” (see paragraph 29 above), the higher domestic courts failed to duly examine whether that legal requirement had been complied with in the case at hand. 58. Moreover, the Court notes that after the date of the facts in the present case, the domestic regulatory framework evolved to provide for new special requirements for reporting on “violence in educational institutions”, in particular the requirement to avoid disclosure of any indication that might lead to the identification of a minor, provided for in Article 7 1 of NAC Decision no. 220/2011, amending NAC Decision no. 141/2013 (see paragraph 30 above). It follows that reporting on dramatic events surrounding or involving minors requires audiovisual media service providers to perform their duty of informing the public while protecting the identity of minors involved. 59. The Court considers that the above-mentioned requirements are of the utmost importance in cases of media reporting concerning minor children. The disclosure of information concerning their identity could jeopardise the child’s dignity and well-being even more severely than in the case of adult persons, given their greater vulnerability, which attracts special legal safeguards. 60. Finally, regarding the consequences of broadcasting the news report including the interview with the applicant without the appropriate safeguards to protect her identity, the Court observes that the higher domestic courts did not depart from the findings of the Ploiești District Court, which noted that the applicant suffered from severe distress and anguish following the broadcast of her interview (see in paragraphs 12 and 20 above). It appears, thus, that the broadcast had serious repercussions on the applicant’s well ‑ being and private life and that her allegations on this point do not appear ill-founded or frivolous to the Court (compare Aleksey Ovchinnikov v. Russia, no. 24061/04, § 51 in fine, 16 December 2010). (iv) Conclusion 61. The Court considers that the higher domestic courts only superficially engaged in the balancing exercise between the applicant’s right to private life and company X’s freedom of expression, and this exercise was not carried out in conformity with the criteria laid down in the Court’s case-law and mentioned in paragraph 47 above. 62. In the Court’s view, the above considerations – especially on the young age and the lack of notoriety of the applicant; on the little contribution that the broadcast of her interview was likely to bring to a debate of public interest and on the particular interest of a minor in the effective protection of her private life – are sufficiently strong reasons to substitute its view for that of the domestic courts (see the case-law quoted in paragraph 47 in fine above). The Court finds that, given their duty to duly take into account the rights of minor children (see paragraph 47 above), the latter failed to strike a fair balance between the relevant interests, thus failing to comply with their positive obligations to protect the applicant’s right to respect for her private life. 63. There has accordingly been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 65. The applicant did not submit a claim for just satisfaction within the time-limit set by the Court. As the present case does not disclose exceptional circumstances which call for a just-satisfaction award in respect of non ‑ pecuniary damage (see, a contrario, Nagmetov v. Russia [GC], no. 35589/08, §§ 57-92, 30 March 2017), the Court considers that there is no call to award the applicant any sum on that account. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the domestic appellate courts in this case had only superficially balanced the question of the applicant’s right to private life and the broadcaster’s right to free expression. They had not properly taken into account the fact that she had been a minor, failing in their obligation to protect her right to private life. In particular, concerning the interview itself, the Court was satisfied that it had been about a matter of public concern. However, the applicant had been a minor and so the requirement of parental consent – which had never been obtained – had to be weighed against that. The Court noted in particular that the relevant National Audiovisual Council regulations stated “the right of the minor to his or her private life and private image prevail[ed] over the need for information, especially in the case of a minor in a difficult position”. It observed that the domestic courts had found that the applicant had suffered from severe distress and anguish following the broadcast. The Court recalled that, even where a news report made a contribution to a public debate, the disclosure of private information – such as the identity of a minor who had witnessed a dramatic event – had not to exceed editorial discretion, and had to be justified. These considerations had been more important in the present case, where the Court expressed doubts as to the relevance to a debate of public interest of the opinions of a child who had not witnessed the event in question. |
57 | Adoption | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Law and practice relating to adoption 1. International texts a) Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in its Resolution 44/25 of 20 November 1989 41. This Convention, which entered into force in Luxembourg and Peru before the facts, provides the following in its relevant Articles. Article 3 “ 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. ” Article 21 “ States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall : ( a) Ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; ( b) Recognise that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin; ( c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; ( d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; ( e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. ” b) Recommendation 1443 (2000) of the Parliamentary Assembly of the Council of Europe 42. The relevant extracts of Recommendation 1443 (2000), entitled “International adoption: respecting children's rights”, read as follows : “ The Assembly ... fiercely opposes the current transformation of international adoption into nothing short of a market regulated by the capitalist laws of supply and demand, and characterised by a one-way flow of children from poor states or states in transition to developed countries. It roundly condemns all crimes committed in order to facilitate adoption, as well as the commercial tendencies and practices that include the use of psychological or financial pressure on vulnerable families, the arranging of adoptions directly with families, the conceiving of children for adoption, the falsification of paternity documents and adoption via the Internet. It wishes to alert European public opinion to the fact that, sadly, international adoption can lead to the disregard of children's rights and that it does not necessarily serve their best interests. In many cases, receiving countries perpetuate misleading notions about children's circumstances in their countries of origin and a stubbornly prejudiced belief in the advantages for a foreign child of being adopted and living in a rich country. The present tendencies of international adoption go against the UN Convention on the Rights of the Child, which stipulates that if a child is deprived of his or her family the alternative solutions considered must pay due regard to the desirability of continuity in the child's upbringing and to his or her ethnic, religious, cultural and linguistic background. ... ” 2. National legislation and case-law a) Full adoption 43. The principles and effects of full adoption may be summarised as follows (see G. Ravarani, “ La filiation ”, Feuille de liaison de la conférence Saint-Yves no. 75, March 1990). THE LAW I. THE ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 80. The applicants complained that they had not received a fair hearing, in so far as the national courts had failed to respond to their plea relating to Article 8 of the Convention. They relied in that regard on Article 6 of the Convention, which provides : “ In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] tribunal ... ” A. The parties'arguments 1. The applicants 81. The applicants took issue with the courts for having attempted to ignore their argument based on Article 8 of the Convention by failing to respond to it. 82. They asserted that they had consistently claimed before the national courts that the fact that the enforcement of the Peruvian judgment had been made subject to the condition that the mother should marry constituted an interference with their private life which was incompatible with Article 8 § 2 of the Convention. 83. The applicants took the view that there was no rule in Luxembourg positive law that defined the criteria according to which a plea had to be submitted and maintained that if the tribunals of fact had considered that their plea was unclear they ought to have requested the applicants to provide further particulars, in accordance with Article 62 of the new Code of Civil Procedure. 84. Last, they submitted that for a century the Luxembourg case-law had accepted that international law resulting from a treaty which had been signed and ratified, such as the European Convention on Human Rights, took precedence over the rules of national law; yet in the present case the Court of Cassation had considered that the tribunals of fact were not required to examine the compatibility of their ruling with Article 8 § 2 of the Convention. Thus, relying in particular on Dulaurans v. France ( no. 34553/97, §§ 33 and 34, 21 March 2000), the applicants took issue with the tribunals of fact for having failed to examine their plea properly and with the Court of Cassation for having endorsed that ruling, employing reasoning containing a manifest contradiction. 85. The applicants concluded that the proceedings at issue did not satisfy the standards of quality required by Article 6 of the Convention. 2. The Government 86. The Government were of the view that the plea at issue which the applicants had submitted to the tribunals of fact was neither clear nor precise. 87. The Government further submitted that it was not the Court of Cassation's place to undertake an investigation in order to clarify that plea and thus to make up for the applicants'shortcomings. 88. Last, the Government observed that the applicants had relied in their submissions on arguments based on international public policy; in the Government's submission, from the time when the tribunals of fact had decided that Luxembourg law had not been observed by the Peruvian judge in the context of the Luxembourg rules on the conflict of laws, any arguments centred on international public policy became devoid of purpose. The Government reiterated that “while Article 6 § 1 obliges courts to give reasons for their decisions, that obligation cannot be understood as requiring a detailed answer to every argument” ( Fourchon v. France, no. 60145/00, § 22, 28 June 2005), and submitted that in the present case it had been unnecessary to give specific reasons for the decision reached regarding that argument. In addition to that conclusion of pure logic, according to the Government, it was also the case that the Court was not required to adjudicate on errors of fact or of law made by the domestic courts. B. The Court's assessment 89. The Court reiterates that the right to a fair trial as guaranteed by Article 6 § 1 of the Convention includes, in particular, the right of the parties to the trial to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective ( see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 16, § 33), this right can only be seen to be effective if the observations are actually “heard”, that is duly considered by the trial court. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant ( see Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I, and Albina v. Romania, no. 57808/00, § 30, 28 April 2005 ). 90. The Court reaffirms, moreover, that while Article 6 § 1 obliges the courts to give reasons for their judgments, it cannot be understood as requiring a detailed answer to every argument put forward by the parties. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case ( see Ruiz Torija v. Spain, judgment of 9 September 1994, Series A no. 303 ‑ A, § 29, and Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 55). 91. In the present case the applicants raised before the Court of Appeal, in a part entitled “ Public policy implications ”, a ground of appeal challenging the compatibility of the judgment at first instance with Article 8 of the Convention. They took issue with the first-instance court for having given Luxembourg law precedence over the international conventions in refusing to order enforcement of the Peruvian adoption decision. In its judgment of 6 July 2000 the Court of Appeal failed to respond, even in substance, to that ground of appeal. 92. In so far as the Government explained that the applicants'argument lacked clarity and precision, the Court is compelled to note at the outset that the Court of Appeal failed to avail itself of the possibility – provided by Article 62 of the new Code of Civil Procedure – to invite the applicants to provide further particulars of their ground of appeal. Incidentally, the Court considers that that plea, set out in writing in the document initiating the appeal, was formulated in sufficiently clear and precise terms. The applicants, relying on Article 8 of the Convention, had stated that in their view the judgment at first instance penalised the minor child and that public policy specifically required that the Peruvian adoption decision be enforced. The applicants had also cited a previous decision which, admittedly in a different context, had held that an interference with the right for the father and mother to maintain a relationship with their children was not justified by one of the objectives set forth in Article 8 § 2 of the Convention. 93. In its judgment of 14 June 2001 the Court of Cassation upheld the solution reached by the tribunals of fact. It decided, first, that the Court of Appeal was no longer required to respond to the ground of appeal put forward by the applicants in the document initiating the appeal under the heading “ Public policy implications ”, as that question had become devoid of purpose by the very effect of their decision not to apply the foreign law and, second, that the argument relating to Article 8 of the Convention set out in the document initiating the appeal, “owing to its doubtful, vague and imprecise nature, did not constitute a ground of appeal requiring a response ”. 94. The Court must ascertain whether, in this case, the solution adopted by the national authorities could reasonably be justified in the light of Article 6 of the Convention. 95. The Court of Appeal had decided that the first-instance court had been correct to dismiss the application for enforcement of the foreign judgment which had pronounced a full adoption by an unmarried Luxembourg national, on the ground that the Peruvian decision was inconsistent with the Luxembourg law on the conflict of laws, which provides that the conditions for adoption are governed by the national law of the adoptive parent. The Court of Appeal had concluded that it was unnecessary to examine the other conditions of enforcement, including the conditions of conformity to international public policy. 96. The Court must bear in mind that, even though the courts cannot be required to state the reasons for rejecting each argument of a party ( see Ruiz Torija, cited above, § 29), they are nonetheless not relieved of the obligation to undertake a proper examination of and respond to the main pleas put forward by that party ( see, mutatis mutandis, Donadze v. Georgia, no. 74644/01, § 35, 7 March 2006). Where, in addition, those pleas deal with the “rights and freedoms” guaranteed by the Convention and the Protocols thereto, the national courts are required to examine them with particular rigour and care. 97. In the present case, the Court is of the opinion that the question of the incompatibility of the decision at first instance with Article 8 of the Convention – in particular from the aspect of its conformity to international public policy – was among the main pleas put forward by the applicants and thus required a specific and explicit response. The Court of Appeal failed to respond to the ground of appeal alleging that public policy specifically required, on the basis of Article 8 of the Convention, that the Peruvian adoption decision be enforced. The Court of Cassation, moreover, upheld that decision reached by the tribunals of fact, in spite of having previously held that the Convention had direct effects in the Luxembourg legal order (paragraph 79 above ). 98. In the light of the foregoing considerations, the Court considers that the applicants were not given an effective hearing by the domestic courts, which failed to guarantee their right to a fair hearing, within the meaning of Article 6 § of the Convention. Accordingly, there has been a violation of that provision. II. THE ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, TAKEN ON ITS OWN 99. The applicants alleged that the Luxembourg authorities'refusal to grant enforcement of the judgment of the Peruvian court pronouncing the full adoption of the child infringed their right to family life. They relied on Article 8 of the Convention, which provides as follows : “ 1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ” A. The parties'arguments 1. The applicants 100. The applicants took issue with the Luxembourg authorities for not recognising the family tie which they had validly created by the full adoption judgment pronounced in Peru. 101. They maintained, above all, that the following various elements must be observed. 102. Before the first applicant, a number of unmarried women had been able to adopt children in Peru without difficulty. During the 1970s and up to the early 1990s it had been possible to go to the registration officer with a translation of the Peruvian full adoption judgment and have the judgment entered in the register without applying for enforcement of it. The decisions which had concluded a full adoption in Peru were thus given recognition by operation of law by the Luxembourg registration officers. It was against that background that the first applicant, acting in good faith, had taken steps to adopt in Peru. 103. The second applicant, whose biological mother had died, had been placed in an orphanage because of the ill-treatment she had received in her family of origin. 104. The first applicant – with a certificate issued by the Luxembourg Attorney General's representative attesting to her eligibility to adopt – ensured that she had scrupulously carried out all the steps in the procedure provided for by the Peruvian legislation to adopt the child, then aged three. Thus, in particular, she had spent several weeks in the locality of the court competent to pronounce the adoption. The Peruvian court had pronounced full adoption, after establishing that all the legal conditions were satisfied. 105. It had not therefore been the first applicant's intention to fraudulently circumvent the provisions of the law or to launch a crusade in favour of adoption by unmarried persons. 106. In 1994 the practice of entering Peruvian full adoption judgments in the Luxembourg civil status registers had been abruptly abolished. The applicants, sadly, had no longer been able to take advantage of that practice; their case had been the first to be subject to review by the Luxembourg judicial authorities. 107. The applicants were at pains to point out that the Court of Appeal, in a differently composed division from that which had sat in their case, had recently taken a different approach with respect to the recognition of a full adoption pronounced abroad. In that other case, a married couple had obtained a certificate attesting that they satisfied all the statutory conditions to carry out a full adoption in Peru. The husband had died during the course of the proceedings and the Peruvian authorities had agreed to entrust the child to the wife alone. Although the Luxembourg District Court had declared the widow's application to adopt inadmissible, the Court of Appeal had decided that as the Peruvian adoption judgment had to be recognised by operation of law, it produced binding effects (paragraph 65 above ). 108. As to the merits, the applicants maintained that the refusal to enforce the Peruvian judgment pronouncing full adoption constituted an “interference” with their right to respect for their family life. Although, on account of the full adoption validly effected in Peru, the ties between the child and her family of origin had been severed, with the consequence that she no longer had a biological family, the tie formed between the two applicants as a result of that foreign adoption was denied by the Luxembourg legal order. Failing enforcement of the Peruvian decision the child would continue, so far as the Luxembourg authorities were concerned, to bear her Peruvian name and was regarded, under the tax laws, as being the responsibility of the first applicant without being fully recognised as her daughter. A residence permit must therefore be applied for from the Ministry of Justice at regular intervals, and could one day be refused. While it was true that in the meantime a simple adoption judgment had been delivered in favour of the applicants, those problems had nonetheless not been resolved. 109. The applicants acknowledged that the interference could be considered to be “in accordance with the law” in view of the interpretation of the domestic law as presented by the national courts. 110. On the other hand, they disputed the “necessity” of the interference. Contrary to the Government's contention, the interference had not been necessary for the purpose of determining whether a full adoption, effected contrary to the Luxembourg law by an unmarried person, was prohibited; in the applicants'submission, the impugned interference with their family life consisted precisely in the denial of a family tie legitimately acquired abroad. The refusal to recognise the full adoption made the child a victim, although the child could not be penalised for the acts carried out by her adoptive mother. By way of example, the applicants pointed out that the minor child must be issued with residence permits on a regular basis and could not be entered in her mother's passport. Furthermore, if, when she had reached the age of 16, the minor child should wish to pursue an occupational apprenticeship, she would not benefit from the Community preference and would thus not obtain a work permit unless it were proved that an equivalent candidate could not be found on the employment market in the European Union. The applicants concluded that the child was in a legal vacuum, since she no longer had any ties with her family of origin and the refusal to order enforcement of the full adoption prevented the creation of a substitute family tie with her adoptive mother. The applicants emphasised that this problem had not been resolved by the simple adoption recently granted: the sole purpose of simple adoption was to create a supplementary family tie which did not include the genuine, unrestricted integration of the adopted child into the adoptive family. While those consequences were not harmful for a child whose ties with the family of origin persisted, the effects were harmful in the present case, where the child had lost the tie with her family of origin but that tie could not be replaced by a new tie with her adoptive mother. 111. The applicants concluded that the fact that the Luxembourg authorities refused to recognise an adoption legitimately concluded in another State Party to an international convention without being able to invoke what were indeed the best interests of the child constituted an interference with their family life which was not justified on any of the grounds set forth in Article 8 § 2. 112. The applicants submitted that the Grand Duchy of Luxembourg had a “positive obligation” to recognise the existence of an adoptive family tie resulting from a court judgment which had become final and which had been delivered in a country that shared the system of values of the majority of member States of the Council of Europe, in normal and legitimate circumstances and in conformity with the law of that country. Thus, a civil- status situation created legitimately in another State should be recognised by operation of law. The applicants, finding support in that regard in the ruling of an administrative court of first instance (paragraph 38 above) and in that of a division of the Court of Appeal (paragraph 107 above), were of the opinion that Luxembourg's ratification of the Hague Convention had placed it under an obligation to recognise the adoption pronounced in Peru. The only permitted restriction of that positive obligation to recognise the obligation validly concluded abroad was that of the right of the child. 2. The Government 113. The Government did not dispute that family life was at issue in the present case, even though the family in question was a limited family, consisting of an unmarried mother and an adopted child. In so far as the question of the recognition of the Peruvian adoption by the Luxembourg courts had arisen when the applicants were already living together, the Government considered that the concept of “family” was established. 114. On the other hand, the Government denied that there had been any “interference” by the public authorities with the effective exercise of the applicants'right to a family life. The Luxembourg authorities had not in any way attempted to prevent or prohibit the applicants from living together. In that regard, the Government submitted that the applicants alleged not a direct interference with the actual exercise of their family life, but administrative obstacles affecting the child whose full adoption had not been recognised; the Government emphasised, moreover, that the bill on the reform of the law on nationality provided for absolute equality between children, whether adopted or not, with respect to access to nationality. In the Government's submission, the interference by the legislature consisted in the present case in the fact that it required that a foreign judgment effecting adoption be recognised according to the procedures of Luxembourg private international law. The fact of requiring enforcement of a judgment was recognised in all States as a clear and necessary prerogative, for the purpose of ascertaining that the judgment was compatible with the fundamental rules governing the organisation of society and of the State. 115. On the assumption that there had been an “interference”, the Government maintained that the interference was “necessary” in order to protect Luxembourg international public policy, in that it made it possible to determine whether a rule of Luxembourg law – the rule prohibiting full adoption, contrary to Luxembourg law, abroad, by an unmarried person – had or had not been observed. In that regard, the Government emphasised the margin of appreciation left to States to define what type of family – single - parent family or two - parent family – afforded the greater protection to the child. Thus, in the present case, the interference was proportionate to the aim pursued, namely, the protection of the adopted child. The legislature had placed limits on full adoption so that such adoption, which entailed a definitive break with the adopted child's family of origin and the adopted child's full and entire entry into the new family, did not adversely affect the adopted child, or, moreover, any children of the adoptive family. The Government concluded that an interference, if it must be described as such, by the Luxembourg legislature with the applicants'family life was lawful in a democratic society in order to prevent an adoption effected in any circumstances whatsoever – and possibly in circumvention of Luxembourg law – from adversely affecting the child and the parent. In that regard, the Government emphasised that the very essence of a procedure for recognition of a foreign adoption by the Luxembourg courts was to ascertain that the child's ties with his or her family of origin had been severed without the child sustaining irremediably harmful emotional or economic consequences. 116. As to whether or not the State bore a “positive obligation”, the Government maintained that, in so far as no family life had pre-existed the application to adopt the child, which had been made in a manner contrary to Luxembourg public policy, the State was under no positive obligation to protect the creation of a family tie before that tie could even be recognised. In the Government's submission, Article 8 could not afford the possibility of circumventing the legislation of a country by imposing de facto the protection of family life before the State in question had been able to pronounce de jure on the recognition of a family tie in conformity with its national legislation. In their observations of 29 December 2004, the Government further explained that the question was whether effective “respect” for the applicants'family life obliged Luxembourg to enhance the status of the adoptive parent and the adopted child. Observing that the Court had consistently held that Article 8 implied the right of a parent to measures capable of reuniting him or her with his or her child, the Government asserted that in the present case no problem of reunification arose, since the emotional ties established by the fact that the applicants lived together had not been challenged. The Government added that the Luxembourg legislature could not be criticised for having made the adopted child's situation uncomfortable, as the procedure for recognition of a foreign judgment was intended to enable the State to ascertain that Luxembourg's public international policy was respected. The Government referred to the Court's case-law to the effect that the Convention did not guarantee a right to adopt as such and went on to list the positive obligations defined by the Court in Marckx v. Belgium ( judgment of 13 June 1979, Series A no. 31), Johnston and others v. Ireland ( judgment of 18 December 1986, Series A no. 112) and Eriksson v. Sweden ( judgment of 22 June 1989, Series A no. 156). The Government submitted that it could not be inferred from that case-law that Luxembourg was under any obligation, in relation to adoption, to amend its legislation in order to allow recognition of a foreign judgment which had approved the full adoption of a child by an unmarried mother, when in Luxembourg simple adoption was the only form of adoption available to an unmarried person. B. The Court's assessment 1. Applicability of Article 8 of the Convention 117. The Court reiterates that “[b]y guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family” ( see Marckx, cited above, § 31, and Johnson v. the United Kingdom, judgment of 24 October, Reports 1997-VII, § 62). In the present case, the applicant has acted as the minor child's mother in every respect since 1996, so that “family ties” exist “ de facto ” between them (see, mutatis mutandis, X, Y and Z v. the United Kingdom, judgment of 22 April 1997, Reports 1997-II, vol. 35, § 37). The Court further observes that the Government do not dispute that a family tie has been established between the two applicants. It follows that Article 8 is applicable. 2. Compliance with Article 8 of the Convention 118. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are, in addition, positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation ( see Pini and others v. Romania, nos 78028/01 and 7803 0/01, § 149, ECHR 2004 ‑ V (extracts)). 119. According to the principles set out by the Court in its case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and establish legal safeguards that render possible the child's integration in his family (see, mutatis mutandis, Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A no. 297-C, § 32 ). 120. The Court considers that the positive obligations that Article 8 lays on the Contracting States in this matter must be interpreted in the light of the Convention on the Rights of the Child of 20 November 1989 (see, mutatis mutandis, Maire v. Portugal, no. 48206/99, § 72, ECHR 2003 ‑ VII). 121. The Court reiterates, moreover, that although “the right to adopt was not included as such among the rights guaranteed by the Convention” ( see Fretté v. France, no. 36515/97, § 29, ECHR 2002 ‑ I), “ the relations between an adoptive parent and an adopted child are as a rule of the same nature as the family relations protected by Article 8 of the Convention ” ( see Pini and Others, cited above, § 140, and X. v. France, no. 9993/82, Commission decision of 5 October 1982, Decisions and Reports (DR) 31, p. 241). 122. The Court observes at the outset that the present case must be distinguished from the Fretté case. In this case the first applicant did not have an application for authorisation to adopt rejected but was refused enforcement of a Peruvian judgment which, following a rigorous procedure, had pronounced a full adoption and which, moreover, had been declared enforceable in Peru. 123. Whether the question is approached from the aspect of a positive obligation of the State – to adopt reasonable and adequate measures to protect the rights of the individual under paragraph 1 of Article 8 – or from that of a negative obligation – an “interference by a public authority”, which must be justified under paragraph 2 –, the principles to be applied are quite similar. Although the Luxembourg courts'refusal to grant enforcement of the Peruvian judgment is the result of the absence in the Luxembourg legislation of provisions allowing an unmarried person to obtain full adoption of a child, the Court considers that that refusal represented in this case an “interference” with the right to respect for the applicants'family life (see, mutatis mutandis, Hussin v. Belgium, no. 70807/01, 6 May 2004). 124. Such an interference constitutes a breach of Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims set forth in the second paragraph of that provision and is “necessary in a democratic society” in order to attain them. “Necessity” implies an interference that is based on a pressing social need and, in particular, is proportionate to the legitimate aim pursued. 125. In the present case, the Court finds that the interference was indisputably based on Articles 367 and 3 70 of the Luxembourg Civil Code and was therefore “in accordance with the law”. 126. In the Court's eyes, there is no reason to doubt that the refusal to order enforcement of the Peruvian adoption judgment was meant to protect the “health and morals” and the “rights and freedoms” of the child. It does not seem unreasonable that the Luxembourg authorities should display prudence when they determine whether the adoption was made in accordance with the Luxembourg rules on the conflict of laws. On that point, the Court reiterates the terms of Recommendation 1443 (2000) of the Parliamentary Assembly of the Council of Europe, entitled “International adoption: respecting children's rights” ( see paragraph 42 above ). 127. In order to determine whether the impugned measures were “necessary in a democratic society”, the Court must consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among other authorities, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002-I ). 128. The Court reiterates at the outset that in the area at issue the Contracting States enjoy a wide margin of appreciation (see, mutatis mutandis, Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299 ‑ B, § 39). In addition, the Court's task is not to substitute itself for the competent Luxembourg authorities in determining the most appropriate policy for regulating the adoption of children, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, among other authorities, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299 ‑ A, § 55, and Stjerna, cited above, § 39). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and the context; in this respect one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, mutatis mutandis, Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, § 40). 129. The Court observes that in the sphere in question the situation is at an advanced stage of harmonisation in Europe. An examination of the legislation of the member States shows that adoption by unmarried persons is permitted without restriction in most of the forty - six countries ( see paragraph 70 above ). 130. In this case, a practice existed before the facts in issue, whereby Peruvian judgments pronouncing full adoption were recognised by operation of law in Luxembourg. Thus – and the Government do not dispute this –, several unmarried women had been able to have such a judgment entered in the Luxembourg civil status registers without seeking enforcement of those judgments. The first applicant therefore took steps in good faith with a view to adopting in Peru. As the applicant had complied with all the rules laid down by the Peruvian procedure, the court pronounced the full adoption of the second applicant. Once in Luxembourg, the applicants could legitimately expect that the civil status registrar would enter the Peruvian judgment on the register. However, the practice of entering judgments had been suddenly abolished and their case was submitted for review by the Luxembourg judicial authorities. 131. Those authorities dismissed the application for enforcement submitted by the applicants, relying on the application of the Luxembourg rules on the conflict of laws, which provide that the conditions for adoption are governed by the national law of the adoptive parent, in this case Article 367 of the Civil Code, which provides that an application for full adoption can be made only by a married couple. The courts concluded that there was no need to examine the other conditions of enforcement, which included compliance with international public policy. 132. The Court considers that the decision refusing enforcement fails to take account of the social reality of the situation. Accordingly, since the Luxembourg courts did not formally acknowledge the legal existence of the family ties created by the Peruvian full adoption, those ties do not produce their effects in full in Luxembourg. The applicants encounter obstacles in their daily life and the child is not afforded legal protection making it possible for her to be fully integrated into the adoptive family. 133. Bearing in mind that the best interests of the child are paramount in such a case (see, mutatis mutandis, Maire, cited above, § 77), the Court considers that the Luxembourg courts could not reasonably disregard the legal status validly created abroad and corresponding to a family life within the meaning of Article 8 of the Convention. However, the national authorities refused to recognise that situation, making the Luxembourg conflict rules take precedence over the social reality and the situation of the persons concerned in order to apply the limits which Luxembourg law places on full adoption. 134. The Government explain that the legislature set limits on full adoption so that such adoption – which entails a definitive break with the adopted child's family of origin and his or her full and entire entry into the new family – will not be harmful to the adopted child. In the circumstances of the present case, the Court does not find that argument convincing : as the second applicant had been declared abandoned and placed in an orphanage in Peru, it was precisely the interests of the child that stood against the refusal to recognise the Peruvian adoption judgment. On that point, the Court notes, moreover, that a division of the Court of Appeal recently took the best interests of the child into consideration and decided, in a slightly different legal and factual context, that a Peruvian adoption judgment pronounced in favour of a Luxembourg woman should be recognised by operation of law. In the judgment in question, the Court of Appeal emphasised, inter alia, the need to give the child the most favourable status. The Court of Appeal further stated that the fact that the Peruvian decision produced the effects of a Luxembourg full adoption, in particular by severing the child's pre-existing legal parent-child relationship and by its irrevocable nature, was not prejudicial to Luxembourg's international public policy ( see paragraph 65 above). 135. The Court concludes that in this case the Luxembourg courts could not reasonably refuse to recognise the family ties that pre-existed de facto between the applicants and thus dispense with an actual examination of the situation. Reiterating, moreover, that the Convention is “a living instrument and must be interpreted in the light of present-day conditions” (see, among other authorities, Johnston and Others, cited above, § 53 ), the Court considers that the reasons put forward by the national authorities – namely, the strict application, in accordance with the Luxembourg rules on the conflict of laws, of Article 367 of the Civil Code, which permits adoption only by married couples – are not “sufficient” for the purposes of paragraph 2 of Article 8. 136. In the light of the foregoing, the Court considers that there has been a violation of Article 8 of the Convention. III. THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8 137. The applicants claimed that the refusal to enforce the Peruvian adoption judgment constituted a violation of Article 14 of the Convention in conjunction with Article 8, those Articles reading as follows : Article 14 “ The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ” Article 8 “ 1. Everyone has the right to respect for his private and family life ... ” A. The parties'arguments 1. The applicants 138. The applicants maintained in the first place that the child, who had not chosen her situation, had been the subject of unjustified discrimination. Although an adoptive mother had been designated for her in all conscience and according to a well- organised procedure by the authorities of her country of origin, the adoptive tie was denied by the Luxembourg courts. The minor child thus suffered discrimination by comparison with another Peruvian child who had been adopted by a Luxembourg married couple and whose family ties had been recognised in Luxembourg, even if the couple had subsequently separated or if one of the parents had subsequently died. 139. The refusal to order enforcement exposed the second applicant to obstacles on a daily basis. For example, as she did not have Luxembourg nationality, she was required to obtain a visa in order to visit Switzerland, whereas Community nationals had no need of such a visa. Nor had the day-to-day problems been resolved by the fact that in the meantime she had had the advantage of a simple adoption, since the resulting legal treatment continued to operate to her disadvantage. 140. As for the first applicant, she asserted that she indirectly suffered, on a daily basis, the obstacles suffered by her child. Thus, she was required to carry out all the administrative procedures resulting from the fact that the child did not have Luxembourg nationality. 141. Next, she submitted that, as an unmarried person, she suffered discrimination by comparison with a married person who sought to adopt. Owing to a simple question of civil status, an unmarried person with the same capacity to bring up children as a married person would have only restricted opportunities to adopt; yet the fact of being married did not afford better guarantees to the adopted child. Also, the first applicant contended that distinction based on a question of civil status was not based on a relevant criterion. In her submission, the only truly relevant criterion in adoption matters should be that of the capacity of the adoptive parent to bring up children. 142. Last, the first applicant saw no justification for the prohibition on full adoption by unmarried persons, since a simple adoption was available to the same unmarried persons. She questioned why what the national authorities deemed to be the harmful consequences of full adoption by an unmarried person ceased to apply in the case of simple adoption. 2. The Government 143. The Government observed that Article 14 of the Convention had no independent existence and concluded that there had been no violation of that provision, since, in their view, there had been no violation of Article 8 of the Convention. 144. In the alternative, the Government maintained that the second applicant could not claim to have suffered discrimination, as her situation was the same as that of other Luxembourg and foreign children. 145. Nor, in the Government's submission, could the first applicant claim to be a victim of a violation of Article 14. There was indeed a difference in regime between simple adoption and full adoption, but that difference was not discriminatory because it was the consequence of the status of the parents – married or unmarried – in the eyes of the national legislation. 146. According to the Government, the refusal to recognise the foreign judgment pronouncing the full adoption of a child by an unmarried person pursued, by way of legitimate aim, that of protecting the child. The aim was to afford the child every opportunity to grow up in his or her new family in the presence of two parents capable of helping the child to realise his or her full potential. 147. The refusal was also proportionate to the aim pursued, since it did not constitute for the adoptive parent and the adopted child an obstacle to simple adoption. The justification for the difference between the two adoption regimes was objective and reasonable in that it was based on the idea that two parents were more capable of taking in a child – who was often foreign and had therefore been uprooted – who, by full adoption, had just become part of the new family. In that regard, the Government emphasised that “the State must see to it that the persons chosen to adopt are those who can offer the child the most suitable home in every respect” ( Fretté, cited above, § 42) and that the Court's role was not to substitute itself for the competent domestic authorities in regulating the care of children and the rights of those children's parents, but rather to review under the Convention the decisions that those authorities had taken in the exercise of their power of appreciation ( Hokkanen, cited above, § 55). B. The Court's assessment 1. Applicability of Article 14 of the Convention 148. As the Court has consistently held, Article 1 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or other of the latter (see, among many other authorities, Mizzi v. Malta, no. 26111/02, § 126, ECHR 2006 ‑ ... (extracts ), and Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, § 33 ). 149. In the present case the Court has declared Article 8 of the Convention applicable ( see paragraph 117 above) and has even concluded that there was a breach of that provision ( see paragraph 136 above). The facts therefore fall within the ambit of Article 8 of the Convention and Article 14 of the Convention may apply in conjunction with Article 8 (see, mutatis mutandis, Mizzi, cited above, §§ 127 and 128). 2. Compliance with Article 14 of the Convention 150. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations ( see Mazurek v. France, no. 34406/97, § 46, ECHR 2000 ‑ II). 151. In this case the second applicant is in a similar situation to that of any child who has been the subject in Peru of a full adoption judgment entailing the severance of the ties with his or her family of origin and whose adoptive parent has sought to have that judgment enforced under Luxembourg law. As for the first applicant, she is in a similar situation to that of any other person seeking recognition in Luxembourg of a full adoption judgment delivered in her favour in Peru. 152. For the purposes of Article 14 of the Convention, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, in particular, Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291 ‑ B, § 24, and Mazurek, cited above, § 48 ). 153. The Court considers, for the reasons set out above ( see paragraph 126 above), that it cannot be excluded that the aim invoked by the Government may be considered legitimate. 154. It remains to be ascertained whether, so far as the means employed are concerned, the introduction of a difference in treatment between children, according to whether or not the foreign full adoption judgment is recognised in Luxembourg, appears to be proportionate and appropriate to the aim pursued. 155. In spite of the fact that the applicant followed all the steps required by the Peruvian procedure in good faith and that, in addition, the social worker recommended the adoption in Luxembourg ( see paragraph 14 above), the full adoption judgment delivered in Peru was not recognised by the Luxembourg authorities. The consequence of this refusal to order enforcement is that the second applicant suffers on a daily basis a difference in treatment by comparison with a child whose full adoption is recognised in Luxembourg. It is an inescapable finding in this case that the child's ties with her family of origin have been severed but that no full and entire substitute tie exists with her adoptive mother. The second applicant is therefore in a legal vacuum which has not been remedied by the fact that simple adoption has been granted in the meantime ( see paragraph 40 above ). 156. It follows in particular that, not having acquired Luxembourg nationality, the second applicant does not have the advantage of, for example, Community preference; if she wished to serve an occupational apprenticeship she would not obtain a work permit unless it were shown that an equivalent candidate could not be found on the European employment market. Next, and above all, for more than ten years the minor child has had to be regularly given leave to remain in Luxembourg and has had to obtain a visa in order to visit certain countries, in particular Switzerland. As for the first applicant, she indirectly suffers, on a daily basis, the obstacles experienced by her child, since she must, inter alia, carry out all the administrative procedures resulting from the fact that the former has not obtained Luxembourg nationality. 157. The Court does not find any ground in the present case to justify such discrimination. That conclusion is particularly valid in that, before the facts in issue, other Peruvian children adopted by unmarried mothers obtained a full adoption judgment by operation of law in Luxembourg. In addition, the Court must reiterate that a division of the Court of Appeal recently decided, in a slightly different legal and factual context, that a Peruvian adoption decision pronounced in favour of the Luxembourg woman in that case must be recognised by operation of law ( see paragraph 65 above). 158. In any event, the Court considers that the second applicant cannot be blamed for circumstances for which she is not responsible (see, mutatis mutandis, Mazurek, cited above, § 54). It must be noted that, because of her status as a child adopted by a Luxembourg unmarried mother who has not obtained recognition in Luxembourg of the family ties created by the foreign judgment, she is penalised in her daily existence ( see paragraph 156 above). 159. The foregoing factors are sufficient for the Court to conclude that there was not a reasonable relationship of proportionality between the means employed and the aim pursued. 160. Accordingly, there has been a violation of Article 14 of the Convention in conjunction with Article 8. ... | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention because of the Luxembourg courts’ failure to acknowledge the family ties created by the full adoption granted in Peru, and a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8, the child (and her mother as a result) having been penalised in her daily life on account of her status as the adoptive child of an unmarried mother of Luxembourg nationality whose family ties created by a foreign judgment were not recognised in Luxembourg. |
155 | Medically-assisted procreation | II. RELEVANT DOMESTIC AND COMPARATIVE LAW A. Health-Care Reform Act (Law no. 95/2006) 39. The Act is divided into seventeen titles, covering a wide array of subjects specific to the public health area. Title VI contains provisions covering the procurement and transplant of organs, tissues and cells of human origin used for therapeutic purposes, the donors of organs, tissues and human-origin cells, the donation and transplant thereof and the financing of transplant activity. It transposes into national legislation Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells. It also defines the role and responsibilities of the National Transplant Agency, as the main competent authority in the field of the procurement and transplant of organs, tissues and cells of human origin, including the accreditation, designation, authorization or licensing of tissue establishments and tissue and cell preparation processes. Section 143 The National Transplant Agency shall be responsible for the coordination, supervision, approval and implementation of any provisions regarding transplant activities. Section 148 (4) Any transplant of tissue and cells of human origin may be processed only from the banks accredited or approved by the National Transplant Agency... (9) Imports or exports of tissue and cells shall be possible only if specifically authorised by the National Transplant Agency. B. Order of the Minister of Public Health no. 1763 of 12 October 2007 40. This sets out provisions governing the mechanisms to be put into place to ensure the quality and safety of tissues and cells and their traceability, in compliance with the relevant European law requirements. C. Order of the Minister of Public Health no. 1225 of 1 July 2008 41. This lists the tissue establishments accredited, designated, authorized or licensed to function as tissue and human cell banks and/or users. Neither the clinic S., nor the IFM appear in this Act. D. Romanian Criminal Procedure Code 42. In its relevant parts concerning the procedure on the sequestration of goods pending criminal investigation, the code reads as follows: Article 165 (1) The authority that enforces the sequestration ( sechestru ) must identify and evaluate the goods in question; it may, if need be, make recourse to experts. [...] (9) If there is the danger of estrangement, other movables sequestered will be sealed or taken away, and a custodian can be appointed. Article 166 (1) The body that enforces the sequestration draws up an official report on all acts performed under Section 165, including a detailed description of the goods sequestered and specifying their value... Article 168 (1) Against this measure taken and of its enforcement means, the defendant, the party bearing the civil responsibility, as well as any other interested person may complain to the criminal investigation body who ordered the measure or to the prosecutor who supervises the criminal investigation, before summoning the court, after which the complaint is addressed to the relevant court. (2) The court decision may be appealed against separately. The appeal does not suspend the execution. (3) After the final settlement of the criminal trial, if no complaint has been lodged against the enforcement of the assurance measure, it may be contested under the civil law. Article 169 (1) If the criminal investigation body or the court finds that items taken away from the defendant, or from any other person who received them in custody, are the property of the victim or have been wrongly taken away from him/her, it orders the return of those items to the victim. Any other person who claims a right over the things taken away may ask under Article 168 for enforcement of this right and return of the items taken. (2) The items taken away are returned only if this does not impede the revealing of the truth and the just settlement of the cause, and imposes upon the person to whom they are returned the obligation to keep them until the decision is declared final. E. Comparative Law 43. An overview of the law and practice concerning artificial procreation in general and on the standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells in Europe is included in S. H. and Others v. Austria ([GC], no. 57813/00, §§ 35-44, 3 November 2011). THE LAW I. ADMISSIBILITY OF THE APPLICATION 44. In their observations submitted on 2 September and 6 October 2010, the Government raised three preliminary objections, as follows. 45. Firstly, the Government cited the lack of victim status for the applicant, in so far as her claim to retrieve her embryos from the IFM had already been allowed by the Prosecutor in the decision of 12 November 2009. 46. Secondly, the Government contended that the applicant became the client of S. Clinic, a private clinic, in June 2008, when the clinic did not have a proper licence, either as a bank for genetic material or as a clinic specialising in IVF. It is submitted that the clinic was apparently accredited by the NTA to carry out tissue banking activities (processing, deposit and distribution) only on 15 July 2009; however, the accreditation itself is currently under criminal investigation (see also paragraph 8 above). In any event, the clinic has never received authorization – which would imply authority to carry out removals and transplants - as a few days after its accreditation the DIICOT launched their investigation and the activity of the clinic was suspended. It followed that the State could not be held responsible ratione personae for the applicant’s choice, which determined certain subsequent effects on her right to a private life, in so far as it was the applicant who had freely chosen the services of S., in spite of the fact that the clinic did not comply with the legal and medical requirements for its proper functioning in the IVF field. From that respect, in making her choice the applicant proved to have shown a certain lack of diligence ( culpa in eligendo ) in so far as any diligent person would normally make minimal preliminary inquiries about a clinic which she/he intends to entrust with the safeguarding of their embryos. 47. Finally, the Government contended that the applicant had at her disposal the legal provisions of Law no. 554/2004 regarding administrative proceedings, which allowed her to contest the NTA’s refusal to authorise a transfer of embryos from the IFM into a private clinic, a legal remedy which she had not used. 48. The applicant argued that in spite of the prosecutor’s decision of 12 November 2009, she was still not able to transfer her embryos to a specialised clinic where she would be able to undergo another IVF procedure. She further contended that when she approached the S. Clinic she was in fact following her doctor, who used the facilities of that clinic. Furthermore, the applicant disagreed that a patient had the obligation to check a priori all the authorisations and licences of a clinic he/she intended to approach; it was the responsibility of the State to make sure that a clinic which is allowed to function operates in compliance with the applicable legal and medical requirements, and yet, in June 2008 when she underwent the IVF at S., the latter had been allowed to function for almost a decade, in a building 500 m away from the NTA’s headquarters, but apparently without the required licence. From that respect and in view also of the state authorities’ hesitations when handling her case, the State’s failure to provide and properly implement a sufficiently clear legal framework in this area of expertise could not be denied. 49. The Court firstly notes that pending proceedings before it, namely on 28 July 2010, the applicant lodged a request with the domestic administrative courts, asking them in accordance with Law no. 554/2004 to oblige the NTA to authorise the transfer of her embryos from the IFM into a specialised clinic, whether in Romania or abroad. The proceedings ended on 17 May 2011, when the Romanian highest court allowed the applicant’s claims. From that respect, the Court considers that the Government’s preliminary objection concerning the exhaustion of domestic remedies has been left without object. Secondly, having regard to the final judgment given in the above-mentioned proceedings, which confirmed that it was impossible for the applicant to retrieve and transfer her embryos on account of the NTA’s obstructive interventions which have thus infringed the applicant’s rights and interests protected by Article 8 of the Convention (see paragraph 30 above), the Court estimates that the Government’s remaining objections have lapsed. 50. The Court then considers that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 51. The applicant’s complaint essentially concerns a breach of her right to a private and family life in so far as she was prevented from becoming a parent by means of an IVF procedure using her frozen embryos, on account of the State’s failure to offer her the assistance she required in the matter, namely by allowing her to transfer her embryos into a specialised clinic of her choice. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions 52. The applicant denied any responsibility for the events that took place from July 2009, in so far as it was the Prosecutor who had decided at the time to transfer her embryos into an unauthorised clinic, which triggered the NTA’s subsequent refusal to allow her to retrieve and transfer her embryos into a specialised and authorised clinic. It was the responsibility of the state institutions to be aware of the fact that, once transferred into an unauthorised location, the embryos would have to remain there, in conformity with the European and national regulations in this sensitive field of processing and depositing human cells and tissue. The applicant further contended that it was the lack of communication or even conflict between the state institutions involved in this area of expertise that obstructed her from placing her embryos in a specialised clinic where she would be able to start a new IVF procedure. These conflicts were all the more prejudicial to her, in view also of the fact that she was turning 45, and had therefore less and less chance of a successful IVF procedure. 53. The Government submitted that even assuming that there has been an interference with the applicant’s right to private life in the present case, such interference was prescribed by the law and it was necessary in a democratic society, as it was aimed at the protection of public order, namely the prevention of crime, at protecting health and the rights and liberties of others. Furthermore, the interference complained of was proportional, for the following reasons. At the outset, it was the applicant who freely placed herself in a risky situation by using, in June 2008, the facilities of a clinic that was neither authorised to operate in the IVF field, nor to function as a bank of genetic material. According to the information provided by the NTA, at the time of the IVF procedure neither the clinic S., nor the applicant complied with the existing legal and medical requirements. There was no information in the applicant’s medical file prepared at the S. Clinic regarding the collection of the respective sex cells, their origin, the procedures followed in their subsequent handling, nor any data on the storage of the embryos, steps which were obligatory for IVF procedures. The S. Clinic was the only body responsible for keeping and providing data concerning the traceability of the genetic material, and without that information no medical procedure should have taken place. In this context, the applicant’s choice of S. rendered applicable the principle according to which nemo auditor propriam turpitudinem allegans. The measures subsequently taken by the authorities in connection with the closing of the S. Clinic were aimed at putting an end to an activity which raised suspicions as to its lawfulness and medical safety. Even in such a context, the interests of the applicant were accommodated, in so far as her request to retrieve her embryos was promptly allowed by the prosecutor, a decision that was never contested by the applicant. B. The Court’s assessment 54. The Court firstly notes that it is not disputed between the parties that Article 8 is applicable and that the case concerns the applicant’s right to respect for her private life. The Court agrees, since “private life”, which is a broad term, encompassing, inter alia, elements such as the right to respect for the decisions both to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ IV, and A, B and C v. Ireland [GC], no. 25579/05, § 212, 16 December 2010) or the right of a couple to conceive a child and to make use of medically assisted procreation to that end, such a choice being clearly an expression of private and family life (see S. H. and Others v. Austria, cited above, § 82). 55. The Court pinpoints that the issues complained of in the present case particularly relate to the NTA’s refusal to authorise the applicant to transfer her embryos from the IFM into a specialised clinic of her choice, where she could make use of these embryos via an IVF procedure. The reason given by the Romanian authorities for that refusal was that such an authorisation would be in breach of European and national legislation concerning the standards of quality and safety for the processing and depositing of human tissue and cells. In this context, the Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life, even in the sphere of the relations of individuals between themselves. The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (see Evans, cited above, § 75). In the present case, the Court will approach the case as one involving an interference with the applicant’s right to a private life, since she was in fact prevented from using her embryos by the state authorities, who, in their turn, relied on the legal provisions applicable in the matter and established specific and strict requirements, that were not met in the applicant’s case. In any event, as noted above, the applicable principles regarding justification under Article 8 § 2 are broadly similar for both the analytical approaches adopted ( see S. H. and Others v. Austria, cited above, § 88). 56. Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned. 1. In accordance with the law and legitimate aim 57. The Court considers that the measure at issue, namely the prosecutor’s decision made in the context of criminal proceedings started against S. Clinic, to seize the embryos and place them “in custody” in a State institution, was in accordance with the provisions of Article 165 of the Romanian Criminal Procedure Code. The measure was taken with the approval and in cooperation of the Ministry of Public Health (see paragraph 23 above). At the same time, the measure pursued a legitimate aim, namely the prevention of crime, the protection of health or morals and the protection of the rights and freedom of others in the context of a clinic operating without the required licence necessary in such a sensitive field as assisted reproduction procedures. The aim of the measure as such has not been in dispute between the parties, who concentrated their arguments on the necessity for the interference. 2. Necessity in a democratic society and the relevant margin of appreciation 58. In that connection the Court reiterates that in order to determine whether the measures taken were “necessary in a democratic society” it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of Article 8 § 2 (see, among many other authorities, P., C. and S. v. the United Kingdom, no. 56547/00, § 114, ECHR 2002-VI). 59. In cases arising from individual applications, the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it (see Olsson v. Sweden (no. 1), 24 March 1988, § 54, Series A no. 130). Consequently, the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation, in respect mainly of procedures to be followed or authorities to be involved and to what extent, especially since the use of IVF treatment gave rise then and continues to give rise today to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments. It is why in such a context the Court considered that the margin of appreciation to be afforded to the respondent State is a wide one (see S.H. and Others v. Austria, cited above, § 97). The State’s margin in principle extends both to its decision to intervene in the area and, once it has intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests (see Evans, cited above, § 82). 60. Having this in mind and turning to the circumstances of the present case, the Court finds that it has not been shown that the decision of the prosecutor to confiscate the genetic material found at S. Clinic and to deposit it with a custodian (namely, the IFM) was arbitrary or unreasonable. However, the subsequent effects on the applicant’s right to private life of this measure taken in the context of criminal proceedings launched against S. were, as underlined by the national courts, aggravated by the NTA’s obstructive and oscillatory attitude, which triggered the impossibility for the applicant to transfer her embryos into a clinic specialising in assisted reproduction procedures (see paragraphs 29-30 above). 61. The Court nevertheless notes that in the judgment of 17 May 2011, the highest Romanian court expressly acknowledged that the applicant had suffered a breach of her rights under Article 8 on account of the NTA’s refusal to allow an embryo transfer from the IFM to a specialist clinic, and offered her the required redress for the breach, namely that the embryos be transferred into a specialised and authorised clinic. This transfer was enforced in a relatively short period of time following the pronouncement of the High Court’s judgment and consequently, the applicant’s embryos have now been transferred and deposited in a specialist clinic, namely in the Department for Assisted Reproduction within the Prof. Dr. Panait Sârbu public hospital. It follows that the applicant’s initial complaint, that it was impossible for her to retrieve and transfer her embryos from the IFM, has remained without object in so far as the domestic authorities have adopted and implemented measures albeit with some delay designed to secure respect for the applicant’s right to a private life and consequently the transfer as required by the applicant was made and the embryos have now been deposited in a specialised and authorised clinic. 62. The applicant’s further complaint refers to the fact that in the new clinic she would not be able to proceed with another IVF on account of her past bad experiences in that same place. However, while refraining from any speculation on the matter, which falls outside its competence, but having regard to the latest information received from the parties (see paragraphs 34-38 above), the Court considers that it has not been provided with sufficient evidence that the applicant would not be able to have her interest accommodated in relation to the desired IVF procedure in so far as to sustain her claims under Article 8. 63. Therefore, having regard to the developments of the applicant’s situation, the Court finds that it has not been shown that the State failed to strike a fair balance between the competing interests. Accordingly, there is no appearance of a failure to respect the applicant’s right to private life. 64. There has therefore been no violation of Article 8 of the Convention. III. RULE 39 OF THE RULES OF COURT 65. In view of its findings set out above, the Court considers it is appropriate to lift the interim measure indicated to the Government of Romania under Rule 39 of the Rules of Court (see paragraph 4 above). | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. The domestic courts had expressly acknowledged that the applicant had suffered a breach of her rights under Article 8 on account of the refusal by the authorities to allow the embryo transfer, and had offered her the required redress for the breach, which led to the transfer of the embryos in a relatively short time. Therefore the requisite steps had been taken to secure respect for the applicant’s right to respect for her private life. |
484 | Reasoning in support of a judgment based on difference of sex | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Invalidity insurance 31. Invalidity insurance is governed by two federal statutes - the Old Age and Survivors ’ Insurance Act of 20 December 1949 ("OASIA") and the Invalidity Insurance Act of 19 June 1959 ("IIA"). 1. The insured 32. Invalidity insurance is compulsory for all persons resident in Switzerland (section 1 OASIA). Certain other people may contribute on a voluntary basis, notably Swiss nationals living abroad (section 2 OASIA). 2. Administration 33. Invalidity insurance is managed by cantonal and occupational associations under the supervision of the Confederation (sections 49-73 OASIA and sections 53-67 IIA). 3. Financing 34. At the present time invalidity insurance is financed partly from employers ’ and insured persons ’ contributions and partly from contributions by the State, in roughly equal proportions. There is no ceiling on contributions. Those paid by the insured are automatically deducted from earnings. Children, wives and widows of insured persons are exempted if not working, whereas others not gainfully employed pay from 43 to 1,200 Swiss francs a year (section 3 IIA and section 3 OASIA). 4. The pensions 35. Section 28 IIA deals with the assessment of incapacity. Provision is made in subsection 1 for pensions to be graduated in proportion to the degree of incapacity: a full pension is granted where incapacity is at least 66.66% and a half-pension where it is less than 50%. At the material time, 33.33% incapacity entitled a person to a half-pension only "in cases of hardship"; today incapacity must be at least 40% for a person to be eligible for a quarter-pension. Subsection 2 provides: "For the assessment of incapacity, the income which the insured person could earn after becoming incapacitated and after taking any appropriate rehabilitation measures from work that could reasonably be expected of him in a stable labour market is compared with the income he could have earned if he had not been incapacitated." The amount of the pension is based on the insured ’ s annual average income, which is calculated by dividing the total income taken as a basis for assessing contributions by the number of contribution years (sections 36 et seq. IIA, taken together with sections 29 et seq. OASIA). For full ordinary pensions the maximum amount is double the minimum amount. Contributions are enforceable and the right to claim them is subject to a limitation period of five years (sections 15 and 16 OASIA). B. Appeal procedure 1. Access to the file 36. The Federal Court has derived from Article 4 of the Federal Constitution, which enshrines the principle of equality, an individual ’ s right to inspect his case file lodged with a judicial body. The right in question means being given an opportunity to have access to the official documents and to take notes but not to take the file away or to demand that copies should be made and handed over (judgment of 31 March 1982, Judgments of the Swiss Federal Court (ATF), vol. 108, part Ia, pp. 5-9). On this last point the Federal Court has, however, accepted that individuals may ask for copies, provided that this does not entail an excessive amount of work or substantial expense for the authority concerned (judgment of 4 September 1986, ATF, vol. 112, part Ia, pp. 377-381). 2. Hearings (a) Before appellate bodies 37. Section 85(2)(e) OASIA, first sentence, provides: "If the circumstances so warrant, the parties shall be summoned to a hearing." (b) In the Federal Insurance Court 38. Under Rule 14 para. 2 of the Federal Insurance Court ’ s Rules of Procedure, "The parties shall not have a right to demand a hearing in appeal proceedings. By agreement with the division, the presiding judge may order a hearing to be held, on an application by one of the parties or of his own motion. The parties may inspect the file before the hearing ..." PROCEEDINGS BEFORE THE COMMISSION 39. Mrs Schuler-Zgraggen applied to the Commission on 29 December 1988. She complained, firstly, that her right to a fair trial (Article 6 para. 1 of the Convention) (art. 6-1) had been infringed in that she had had insufficient access to the file of the Appeals Board and there had been no hearing in the Federal Insurance Court. She also claimed that the assumption made by that court, that she would have given up working even if she had not had health problems, amounted to discrimination on the ground of sex (Article 14 taken together with Article 6 para. 1) (art. 14+6-1). 40. The Commission declared the application (no. 14518/89) admissible on 30 May 1991. In its report of 7 April 1992 (made under Article 31) (art. 31), the Commission expressed the opinion that (a) there had been no breach of Article 6 para. 1 (art. 6-1) either on account of the failure to hold a hearing (by ten votes to five) or in respect of access to the file (by thirteen votes to two); and (b) there had been no breach of Article 14 taken together with Article 6 para. 1 (art. 14+6-1) (by nine votes to six). The full text of the Commission ’ s opinion and of the six dissenting opinions contained in the report is reproduced as an annex to this judgment [*] FINAL SUBMISSIONS TO THE COURT 41. In their memorial the Government requested the Court to "hold that in the present case (in so far as Article 6 para. 1 (art. 6-1) of the Convention is applicable and the applicant, with reference to a specific complaint, is a victim and, with reference to another complaint, has exhausted domestic remedies) there has not been a violation of Article 6 para. 1 (art. 6-1) of the Convention or of any other of its provisions". 42. Counsel for the applicant asked the Court to (a) "continue along the path it took in the Feldbrugge and Deumeland cases and to rule that the rights claimed by the applicant in the present case likewise are mainly civil ones, falling within the ambit of Article 6 para. 1 (art. 6-1) of the Convention"; (b) "hold that there has been a breach of Article 6 para. 1 (art. 6-1) with respect to the right to an adversarial hearing"; and (c) "hold that there has been a breach by the Federal Insurance Court of Article 14 taken together with Article 6 para. 1 (art. 14+6-1) of the Convention". AS TO THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) 43. Mrs Schuler-Zgraggen claimed to be the victim of breaches of Article 6 para. 1 (art. 6-1), which provides: "In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ..." A. Applicability of Article 6 para. 1 (art. 6-1) 44. It was common ground between the applicant and the Commission that this provision applied in the instant case. 45. The Government maintained the contrary as, in their submission, the case had public-law features which clearly predominated. Firstly, the claimed right did not derive from a contract of employment, since affiliation was compulsory for the self-employed and the unemployed too. Secondly, award of the pension depended exclusively on the degree of incapacity, no account being taken either of the insured ’ s income or wealth or of the payment of contributions. Thirdly, the Swiss system was strikingly distinctive, in particular in that the financing of it was based on the principles of pay as you go, solidarity and partly drawing on tax revenues. 46. The Court is here once again confronted with the issue of the applicability of Article 6 para. 1 (art. 6-1) to social-security disputes. The question arose earlier in the cases of Feldbrugge v. the Netherlands and Deumeland v. Germany, in which it gave judgment on 29 May 1986 (Series A nos. 99 and 100). At that time the Court noted that there was great diversity in the legislation and practice of the member States of the Council of Europe as regards the nature of the entitlement to insurance benefits under social-security schemes. Nevertheless, the development in the law that was initiated by those judgments and the principle of equality of treatment warrant taking the view that today the general rule is that Article 6 para. 1 (art. 6-1) does apply in the field of social insurance, including even welfare assistance (see the Salesi v. Italy judgment of 26 February 1993, Series A no. 257-E, pp. 59-60, para. 19). As in the two cases decided in 1986, State intervention is not sufficient to establish that Article 6 para. 1 (art. 6-1) is inapplicable; other considerations argue in favour of the applicability of Article 6 para. 1 (art. 6-1) in the instant case. The most important of these lies in the fact that despite the public-law features pointed out by the Government, the applicant was not only affected in her relations with the administrative authorities as such but also suffered an interference with her means of subsistence; she was claiming an individual, economic right flowing from specific rules laid down in a federal statute (see paragraph 35 above). In sum, the Court sees no convincing reason to distinguish between Mrs Schuler- Zgraggen ’ s right to an invalidity pension and the rights to social-insurance benefits asserted by Mrs Feldbrugge and Mr Deumeland. Article 6 para. 1 (art. 6-1) therefore applies in the instant case. B. Compliance with Article 6 para. 1 (art. 6-1) 1. Access to the Appeals Board ’ s file 47. Mrs Schuler-Zgraggen complained in the first place of insufficient access to the Appeals Board ’ s file. (a) The Government ’ s preliminary objection 48. As they had done before the Commission, the Government raised an objection of inadmissibility based on lack of victim status, arguing that the applicant had not availed herself of the opportunity of examining the file at the Appeals Board ’ s registry. 49. The Court notes that the applicant ’ s complaint relates not so much to inspecting the file as to having the documents in it handed over or, at any rate, securing photocopies of them. The objection must therefore be dismissed. (b) Merits of the complaint 50. In Mrs Schuler- Zgraggen ’ s submission, the facts of her case - as often in the social-security field - were complex, and this made it necessary for her to submit documents to specialists. She should therefore have been granted the same facilities as the administrative departments, on whose premises the file was permanently held. Furthermore, she had never had access to Dr F. ’ s report on her lungs, so that she had been unable to submit it to her own expert. 51. The Government disputed this submission. In the proceedings before the Appeals Board the applicant had not availed herself of the opportunity to inspect part of the file and take notes. In the Federal Insurance Court she had had access to all the documents - as had her lawyer, who had received them not long afterwards - and had photocopied some of them. As to Dr F. ’ s report, it was not strictly speaking part of the file, as the Federal Insurance Court moreover noted in its judgment of 21 June 1988; in addition, it was summarised in the medical centre ’ s report of 14 January 1986, which the applicant had seen. In short, the principle of equality of arms had not been contravened in any way. 52. The Court finds that the proceedings before the Appeals Board did not enable Mrs Schuler-Zgraggen to have a complete, detailed picture of the particulars supplied to the Board. It considers, however, that the Federal Insurance Court remedied this shortcoming by requesting the Board to make all the documents available to the applicant - who was able, among other things, to make copies - and then forwarding the file to the applicant ’ s lawyer (see, as the most recent authority, mutatis mutandis, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, paras. 34-39). It also notes that neither the Appeals Board nor the Federal Insurance Court had Dr F. ’ s report before it. Since, taken as a whole, the impugned proceedings were therefore fair, there has not been a breach of Article 6 para. 1 (art. 6-1) in this respect. 2. Federal Insurance Court hearing 53. Mrs Schuler-Zgraggen also complained that there had been no hearing before the Federal Insurance Court. (a) The Government ’ s preliminary objection 54. In the Government ’ s submission, the applicant had not exhausted domestic remedies, as she had failed to apply to the Federal Insurance Court for the proceedings to be oral and public. Admittedly, that court rarely held hearings, but it did not follow that such an application would have been bound to fail. 55. In respect of this preliminary objection there is an estoppel, as the Government only raised it before the Commission after the decision on admissibility, whereas nothing prevented them from doing so earlier (see, as the most recent authority and mutatis mutandis, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 21, para. 45). (b) Merits of the complaint 56. Mrs Schuler-Zgraggen submitted that the Federal Insurance Court should have ordered a hearing so as to form its own opinion of her and ensure that she had a fair trial. 57. The Government considered, on the contrary, that in certain fields purely written court proceedings did not in any way prejudice the interests of the litigant. They emphasised a number of aspects. Firstly, the traditional characteristics of social-security disputes made oral presentation of arguments in which technical points and numerous figures were adduced difficult. Secondly, in the cases brought before it the Federal Insurance Court was free to review the facts and the law, and this made it more akin to an ordinary court of appeal. This was particularly so in administrative-law appeals, as here the Federal Court could rule on the appropriateness of the impugned decision and was not bound either by the cantonal authority ’ s findings of fact or by the submissions of the parties. Thirdly, the number of judgments - approximately 1,200 a year - would drop dramatically if public, oral proceedings were to be the rule; in such an event, the lengthening of the proceedings would seriously jeopardise access to the supreme court. 58. The Court reiterates that the public character of court hearings constitutes a fundamental principle enshrined in paragraph 1 of Article 6 (art. 6-1). Admittedly, neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public, but any such waiver must be made in an unequivocal manner and must not run counter to any important public interest (see, among other authorities, the Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A, p. 20, para. 66). In the instant case the Federal Insurance Court ’ s Rules of Procedure provided in express terms for the possibility of a hearing "on an application by one of the parties or of [the presiding judge ’ s] own motion" (Rule 14 para. 2 - see paragraph 38 above). As the proceedings in that court generally take place without a public hearing, Mrs Schuler-Zgraggen could be expected to apply for one if she attached importance to it. She did not do so, however. It may reasonably be considered, therefore, that she unequivocally waived her right to a public hearing in the Federal Insurance Court. Above all, it does not appear that the dispute raised issues of public importance such as to make a hearing necessary. Since it was highly technical, it was better dealt with in writing than in oral argument; furthermore, its private, medical nature would no doubt have deterred the applicant from seeking to have the public present. Lastly, it is understandable that in this sphere the national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to "the particular diligence required in social-security cases" (see the Deumeland v. Germany judgment previously cited, p. 30, para. 90) and could ultimately prevent compliance with the "reasonable time" requirement of Article 6 para. 1 (art. 6-1) (see, mutatis mutandis, the Boddaert v. Belgium judgment of 12 October 1992, Series A no. 235-D, pp. 82-83, para. 39). There has accordingly been no breach of Article 6 para. 1 (art. 6-1) in respect of the oral and public nature of the proceedings. 3. Independence of the medical experts 59. At the hearing before the Court, counsel for Mrs Schuler-Zgraggen called in question the independence of doctors bound by a long-term contract to a social-security institution, on the ground that they received from that institution the greater part of their income. 60. This was a new complaint; it had not been raised before the Commission and does not relate to the facts the Commission found within the limits of its decision on admissibility. That being so, the Court has no jurisdiction to consider it (see, as the most recent authority and mutatis mutandis, the Olsson v. Sweden (No. 2) judgment of 27 November 1992, Series A no. 250, pp. 30-31, para. 75). II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 6 PARA. 1 (art. 14+6-1) 61. Mrs Schuler-Zgraggen said, lastly, that in the exercise of her right to a fair trial she had suffered discrimination on the ground of sex. She relied on Article 14 (art. 14), which provides: "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." A. The Government ’ s preliminary objection 62. As they had done before the Commission, the Government raised an objection of inadmissibility based on failure to exhaust domestic remedies. The applicant, they submitted, had done no more than characterise the wording used by the Appeals Board as "arbitrary" and had therefore not made to the Federal Insurance Court a precise complaint relating to discrimination in the exercise of a right secured by the Convention. 63. The Court adopts the Commission ’ s reasoning. Firstly, Mrs Schuler-Zgraggen objected to the terms of the Federal Insurance Court ’ s judgment of 21 June 1988, against which no appeal lay. Secondly, in her administrative-law appeal she had already criticised the (similar) assumption made by the Appeals Board in its decision of 8 May 1987. The objection is therefore unfounded. B. Merits of the complaint 64. According to the applicant, the Federal Insurance Court based its judgment on an "assumption based on experience of everyday life", namely that many married women give up their jobs when their first child is born and resume it only later (see paragraph 29 above). It inferred from this that Mrs Schuler-Zgraggen would have given up work even if she had not had health problems. The applicant considered that if she had been a man, the Federal Insurance Court would never have made such an assumption, which was contradicted by numerous scientific studies. 65. The Government argued that Article 6 para. 1 (art. 6-1) and thus, indirectly, Article 14 (art. 14) were not applicable, as the complaint was concerned with the taking of evidence, a sphere which essentially came within the State authorities ’ competence. 66. The Court reiterates that the admissibility of evidence is governed primarily by the rules of domestic law, and that it is normally for the national courts to assess the evidence before them. The Court ’ s task under the Convention is to ascertain whether the proceedings, considered as a whole, including the way in which the evidence was submitted, were fair (see, as the most recent authority and, mutatis mutandis, the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, para. 43, and the Edwards v. the United Kingdom judgment previously cited, pp. 34-35, para. 34). 67. In this instance, the Federal Insurance Court adopted in its entirety the Appeals Board ’ s assumption that women gave up work when they gave birth to a child. It did not attempt to probe the validity of that assumption itself by weighing arguments to the contrary. As worded in the Federal Court ’ s judgment, the assumption cannot be regarded - as asserted by the Government - as an incidental remark, clumsily drafted but of negligible effect. On the contrary, it constitutes the sole basis for the reasoning, thus being decisive, and introduces a difference of treatment based on the ground of sex only. The advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 77, p. 38, para. 78). The Court discerns no such reason in the instant case. It therefore concludes that for want of any reasonable and objective justification, there has been a breach of Article 14 taken together with Article 6 para. 1 (art. 14+6-1). III. APPLICATION OF ARTICLE 50 (art. 50) 68. Under Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Damage 1. Non-pecuniary damage 69. Mrs Schuler-Zgraggen claimed that she had sustained non-pecuniary damage, which she did not quantify, and sought payment of a provisional sum of CHF 22,500 for the length of the proceedings before the Convention institutions. 70. The Government submitted that the publication of a judgment in which a violation was found would satisfy the requirements of Article 50 (art. 50). The Delegate of the Commission did not express any view. 71. The Court considers that the applicant may have suffered non- pecuniary damage but that this judgment provides her with sufficient satisfaction for it. 2. Pecuniary damage 72. Mrs Schuler-Zgraggen also complained that she had lost the benefit of a full invalidity pension on account of proceedings incompatible with Articles 6 para. 1 and 14 (art. 6-1, art. 14). She did not, however, claim any specific sum. 73. The Government pointed out that since 15 February 1992 Swiss law had enabled a victim of a violation found by the Court, or by the Committee of Ministers of the Council of Europe, to apply for a reopening of the impugned proceedings. They therefore considered that the question was not ready for decision. 74. This is also the view of the Court. The question must accordingly be reserved and the further procedure must be fixed, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 54 paras. 1 and 4 of the Rules of Court). B. Costs and expenses 75. Mrs Schuler-Zgraggen sought CHF 7,130.90 in respect of costs and expenses for the proceedings before the national judicial bodies (Mr Derrer : CHF 300; Mr Stöckli : CHF 2,694.20; Mr Wehrli : 2,936.70; own expenses: CHF 1,200). She also claimed CHF 14,285.70 for the proceedings before the Convention institutions, not including the expenses incurred by attending two hearings before the European Court, the one on 26 January 1993 and the one for delivery of the judgment. The Government found the claim excessive. The applicant had not incurred any legal costs before the cantonal authorities or the Federal Insurance Court, and before the Invalidity Insurance Board - at which stage she was assisted by three lawyers - she had not raised any complaint based on the Convention. A lump sum of CHF 5,000 would amply cover all the costs and expenses incurred in Switzerland and at Strasbourg. The Delegate of the Commission considered that the expenses incurred in the proceedings before the Appeals Board were not concerned with remedying a breach of the Convention and he invited the Court to apply its case-law on expenses incurred in the proceedings before the Strasbourg institutions. 76. Making its assessment on an equitable basis as required by Article 50 (art. 50) and having regard to the criteria which it applies in this field, the Court awards the applicant CHF 7,500 under this head as matters stand. | For want of any reasonable and objective justification, the Court held that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 6 § 1 (right to a fair trial) of the Convention. It noted in particular that the Federal Insurance Court had adopted in its entirety the Appeals Board’s assumption that women gave up work when they gave birth to a child and had not attempted to probe the validity of that assumption itself by weighing arguments to the contrary. As worded in the Federal Court’s judgment, the assumption could therefore not be regarded – as asserted by the Swiss Government – as an incidental remark, clumsily drafted but of negligible effect. On the contrary, it constituted the sole basis for the reasoning, thus being decisive, and introduced a difference of treatment based on the ground of sex only. |
1,043 | Military presence and political support | III. RELEVANT DOMESTIC LAW A. The laws of the Azerbaijan SSR 88. The laws relevant to the establishment of the applicants ’ right to property were the 1978 Constitution of the Azerbaijan SSR and its 1970 Land Code and 1983 Housing Code. 1. The 1978 Constitution 89. The relevant provisions of the Constitution stated as follows. Article 13 “The basis of the personal property of citizens of the Azerbaijan SSR is their earned income. Personal property may include household items, items of personal consumption, convenience and utility, a house, and earned savings. The personal property of citizens and the right to inherit it are protected by the State. Citizens may be provided with plots of land as prescribed by law for subsidiary farming (including the keeping of livestock and poultry), gardening and the construction of individual housing. Citizens are required to use their land rationally. State and collective farms provide assistance to citizens for their smallholdings. Personal property or property to which they have a right of use may not be used to make unearned income to the detriment of public interest.” 2. The 1970 Land Code 90. The relevant provisions of the Land Code stated as follows. Article 4 State (people ’ s) ownership of land “In accordance with the USSR Constitution and the Azerbaijan SSR Constitution, land is owned by the State – it is the common property of all Soviet people. In the USSR land is exclusively owned by the State and is allocated for use only. Actions directly or indirectly violating the State ’ s right of ownership of land are forbidden.” Article 24 Documents certifying the right of use of land “The right of use by collective farms, State farms and others of plots of land shall be certified by a State certificate on the right of use. The form of the certificate shall be determined by the USSR Soviet of Ministers in accordance with the land legislation of the USSR and the union republics. The right of temporary use of land shall be certified by a certificate in the form determined by the Soviet of Ministers of the Azerbaijan SSR.” Article 25 Rules on issuance of the certificates on the right of use of land “The State certificates on the right of indefinite use of land and on the right of temporary use of land shall be issued to collective farms, State farms, other State, cooperative and public institutions, agencies and organisations, as well as to citizens, by the Executive Committee of the Soviet of People ’ s Deputies of the district or city (under the republic ’ s governance) in the territory of which the plot of land to be allocated for use is situated.” Article 27 Use of land for specified purpose “Users of land have a right to and should use the plots of land allocated to them for the purpose for which the plots of land were allocated.” Article 28 Land users ’ rights of use over allocated plots of land “Depending on the designated purpose of an allocated plot of land, land users shall be entitled to the following in accordance with the relevant rules: – to construct residential, industrial and public-amenities buildings as well as other buildings and structures; – to plant agricultural plants, to afforest and to plant fruit, decorative and other trees; – to use harvesting areas, pasture fields and other agricultural lands; – to use widespread natural subsoil resources, peat and bodies of water for economic purposes, as well as other valuable properties of a land. Article 126-1 Right of use of land in case of inheritance of ownership rights to a building “If the ownership of a building located in a village is inherited and if the heirs do not have a right to buy a household plot in accordance with the relevant procedure, a right of use shall be given to them over a plot of land needed for keeping the building, in the size determined by the Soviet of Ministers of the Azerbaijan SSR.” Article 131 Allocation of plots of land to citizens for construction of personal residential flats “Land plots for the construction of single-flat residential buildings to become personal property shall be allocated to citizens who live in populated settlements of the Azerbaijan SSR where construction of personal flats is not prohibited under the legislation in force, on land belonging to cities and urban settlements; on village land not being used by collective farms, State farms or other agricultural enterprises; on land of the State reserve; and on land of the State forest fund that is not included in the greening zones of cities. Land shall be allocated for the mentioned purpose in accordance with the procedure provided under ... this Code. Construction of personal flats in cities and workers ’ settlements shall be carried out on empty areas which do not require expenditure for their use or technical preparation and, as a rule, near railroads and motorways which provide regular passenger communication, in the form of stand-alone residential districts or settlements.” 3. The 1983 Housing Code 91. Article 10.3 of the Housing Code read as follows: “Citizens have the right to a house as personal property in accordance with the legislation of the USSR and the Azerbaijan SSR.” 4. The 1985 Instructions on Rules of Registration of Housing Facilities 92. The 1985 Instructions, in Article 2, listed the documents that served as evidence of title to a residential house. The Instructions were approved by the USSR Central Statistics Department through Order no. 380 of 15 July 1985. Article 2. 1 listed the various types of documents constituting primary evidence of title. Article 2. 2 stated that, if the primary evidence was missing, title could be shown indirectly through the use of other documents, including “ inventory-technical documents where they contain an exact reference to possession by the owner of duly formalised documents certifying his or her right to the residential house”. B. The laws of Azerbaijan 93. Following independence, Azerbaijan enacted, on 9 November 1991, laws concerning property which, for the first time, referred to land as being the object of private ownership. However, detailed rules on the privatisation of land allotted to citizens were only introduced later, by the 1996 Law on land reform. The applicants, having left Lachin in 1992, could not have applied to become owners of the land that they had used. 1. The 1991 Law on property 94. The 1991 Law on property in Azerbaijan came into force on 1 December 1991. It stated, inter alia, the following. Article 21 Objects of proprietary rights of the citizen “1. A citizen may possess: – plots of land; – houses, apartments, country houses, garages, domestic appliances and items for private use; – shares, bonds and other securities; – mass - media facilities; – enterprises and property complexes for the production of goods destined for the consumer, social and cultural markets, with the exception of certain types of property, which, by law, cannot be owned by citizens for reasons of State or public security or due to international obligations. ... 5. A citizen who owns an apartment, residential house, country house, garage or other premises or structures has the right to dispose of this property of his own will: to sell, bequeath, give away, rent or take other action in so far as it is not in contravention of the law.” 2. The 1992 Land Code 95. The new Land Code, which came into force on 31 January 1992, contained the following provisions. Article 10 Private ownership of plots of land “Plots of land shall be allocated for private ownership to Azerbaijani citizens in accordance with requests by the local executive authorities based on decisions of a district or city Soviet of People ’ s Deputies for the purposes mentioned below: ( 1) for persons permanently residing on the territory in order to construct private houses and subsidiary constructions as well as for the establishment of private subsidiary agriculture; ( 2) for farming activities and activities of other organisations involved in the production of agricultural products for sale; ( 3) for the construction of private and collective country houses and private garages within the bounds of cities; ( 4) for construction connected to business activities; ( 5) for traditional ethnic production activities. Under the legislation of Azerbaijan, plots of land may be allocated for private ownership to citizens for other purposes.” Article 11 Conditions for allocation of plots of land for private ownership “For the purposes stipulated in Article 10 of this Code, the right of ownership over a plot of land shall be granted free of charge. Plots of land allocated to citizens for their private houses, country houses and garages before the date of entry into force of this Code shall be transferred into their name. The right of private ownership or lifetime inheritable possession over a plot of land cannot be granted to foreign citizens or to foreign legal entities. A plot of land shall not be returned to the former owners and their heirs. They may obtain a right of ownership over the plot of land on the basis provided for in this Code.” Article 23 Allocation of plots of land “ Plots of land shall be allocated to citizens, enterprises and organisations for their ownership, possession, use or rent by a decision of a district or city Soviet of People ’ s Deputies, pursuant to the land - allocation procedure and in accordance with land - utilisation documents. The designated purpose of a plot of land shall be indicated in the land - allocation certificate. The procedure for lodging and examining a request for the allocation or seizure of a plot of land, including the seizure of a plot of land for State or public needs, shall be determined by the Cabinet of Ministers of Azerbaijan. Citizens ’ requests for the allocation of plots of land shall be examined within a period of no longer than one month.” Article 30 Documents certifying land - ownership rights, rights of possession and perpetual use of land “The ownership rights to land and rights of possession and perpetual use of land shall be certified by a State certificate issued by a district or city Soviet of People ’ s Deputies. The form of the mentioned State certificate shall be approved by the Cabinet of Ministers of the Republic of Azerbaijan.” Article 31 Formalisation of the right of temporary use of land “A right of temporary use of land, including a right given in accordance with rental terms, shall be documented by means of an agreement and a certificate. These documents shall be registered by a district or city Soviet of People ’ s Deputies and shall be issued to the land user. The form of the agreement and the certificate shall be approved by the Cabinet of Ministers of the Republic of Azerbaijan.” Article 32 Grounds for termination of land - ownership rights, rights of possession and use of land and rights to rent land “The district or city Soviet of People ’ s Deputies which has provided an ownership right over a plot or a part of a plot of land, rights of possession and use of land or a right to rent it shall terminate these rights in the following cases: ( 1) voluntary surrender or alienation of the plot of land by its owner; ( 2) expiry of the period for which the plot of land was provided; ( 3) termination of activities of an enterprise, agency, organisation or a peasant farm; ( 4) use of the land for purposes other than its designated purpose; ( 5) termination of the employment relationship on the basis of which a land allotment had been provided, except for cases provided by law; ( 6) failure to comply with the terms of a rental agreement; ( 7) failure to pay the land tax or a rent prescribed by the legislation or by a land - rental agreement for two consecutive years, without a good reason; ( 8) failure to use, for one year and without a good reason, a plot of land allocated for agricultural production, or failure to use, for two years and without a good reason, a plot of land allocated for non-agricultural production; ( 9) necessity to seize plots of land for State or public needs; ( 10) transfer of the ownership right over buildings or structures or transfer of a right of operational management over them; ( 11) death of the possessor or user. The legislation of the Republic of Azerbaijan may provide for other grounds for the termination of an ownership right over a plot of land, rights of possession and use of land or a right to rent it.” IV. RELEVANT INTERNATIONAL LAW 96. Article 42 of the Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (“the 1907 Hague Regulations”), defines belligerent occupation as follows. “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Accordingly, occupation within the meaning of the 1907 Hague Regulations exists when a State exercises actual authority over the territory, or part of the territory, of an enemy State. [3] The requirement of actual authority is widely considered to be synonymous to that of effective control. Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion, physical presence of foreign troops is a sine qua non requirement of occupation [4], that is, occupation is not conceivable without “boots on the ground”, therefore forces exercising naval or air control through a naval or air blockade do not suffice [5]. 97. The rules of international humanitarian law do not explicitly address the issue of preventing access to homes or property. However, Article 49 of Convention ( IV ) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (“the Fourth Geneva Convention”) regulates issues of forced displacement in or from occupied territories. It provides as follows. “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated. The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place. The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Article 49 of the Fourth Geneva Convention applies in occupied territory, while there are no specific rules regarding forced displacement on the territory of a party to the conflict. Nonetheless, the right of displaced persons “to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist” is regarded as a rule of customary international law (see Rule 132 in Customary International Humanitarian Law by the International Committee of the Red Cross (ICRC) [6] ) that applies to any kind of territory. V. RELEVANT UNITED NATIONS AND COUNCIL OF EUROPE MATERIAL A. United Nations 98. The UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 28 June 2005, E/CN.4/Sub.2/2005/17, Annex), known as the Pinheiro Principles, are the most complete standards on the issue. The aim of these principles, which are grounded within existing international human rights and humanitarian law, is to provide international standards and practical guidelines to States, UN agencies and the broader international community on how best to address the complex legal and technical issues surrounding housing and property restitution. They provide, inter alia, as follows. 2. The right to housing and property restitution “2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal. 2.2 States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution.” 3. The right to non-discrimination “3.1 Everyone has the right to be protected from discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, disability, birth or other status. 3.2 States shall ensure that de facto and de jure discrimination on the above grounds is prohibited and that all persons, including refugees and displaced persons, are considered equal before the law.” 12. National procedures, institutions and mechanisms “12.1 States should establish and support equitable, timely, independent, transparent and non-discriminatory procedures, institutions and mechanisms to assess and enforce housing, land and property restitution claims. ... ... 12.5 Where there has been a general breakdown in the rule of law, or where States are unable to implement the procedures, institutions and mechanisms necessary to facilitate the housing, land and property restitution process in a just and timely manner, States should request the technical assistance and cooperation of relevant international agencies in order to establish provisional regimes for providing refugees and displaced persons with the procedures, institutions and mechanisms necessary to ensure effective restitution remedies. 12.6 States should include housing, land and property restitution procedures, institutions and mechanisms in peace agreements and voluntary repatriation agreements. ...” 13. Accessibility of restitution claims procedures “13.1 Everyone who has been arbitrarily or unlawfully deprived of housing, land and/or property should be able to submit a claim for restitution and/or compensation to an independent and impartial body, to have a determination made on their claim and to receive notice of such determination. States should not establish any preconditions for filing a restitution claim. ... 13.5 States should seek to establish restitution claims-processing centres and offices throughout affected areas where potential claimants currently reside. In order to facilitate the greatest access to those affected, it should be possible to submit restitution claims by post or by proxy, as well as in person. ... ... 13.7 States should develop restitution claims forms that are simple and easy to understand ... ... 13.11 States should ensure that adequate legal aid is provided, if possible free of charge ...” 15. Housing, land and property records and documentation “... 15.7 States may, in situations of mass displacement where little documentary evidence exists as to ownership or rights of possession, adopt the conclusive presumption that persons fleeing their homes during a given period marked by violence or disaster have done so for reasons related to violence or disaster and are therefore entitled to housing, land and property restitution. In such cases, administrative and judicial authorities may independently establish the facts related to undocumented restitution claims. ...” 21. Compensation “21.1 All refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible, or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation. ...” B. Council of Europe 99. Council of Europe bodies have repeatedly addressed issues of the restitution of property to internally displaced persons (IDPs) and refugees. The following Resolutions and Recommendations are of particular relevance in the context of the present case. 1. Parliamentary Assembly of the Council of Europe (PACE ) Resolution 1708 (2010) on solving property issues of refugees and displaced persons 100. The Parliamentary Assembly noted in paragraph 2 that as many as 2.5 million refugees and IDPs faced situations of displacement in Council of Europe member States, in particular in the North and South Caucasus, the Balkans and the eastern Mediterranean, and that displacement was often protracted with affected persons being unable to return to or to access their homes and land since the 1990s and earlier. It underlined the importance of restitution as follows. “3. The destruction, occupation or confiscation of abandoned property violate the rights of the individuals concerned, perpetuate displacement and complicate reconciliation and peace-building. Therefore, the restitution of property – that is the restoration of rights and physical possession in favour of displaced former residents – or compensation, are forms of redress necessary for restoring the rights of the individual and the rule of law. 4. The Parliamentary Assembly considers that restitution is the optimal response to the loss of access and rights to housing, land and property because, alone among forms of redress, it facilitates choice between three ‘ durable solutions ’ to displacement: return to one ’ s original home in safety and dignity; local integration at the site of displacement; or resettlement either at some other site within the country or outside its borders.” The Parliamentary Assembly then referred to Council of Europe human rights instruments, in particular the European Convention on Human Rights, the European Social Charter and the Framework Convention for the Protection of National Minorities, as well as to the UN Pinheiro Principles, and called on member States to take the following measures. “9. In the light of the above, the Assembly calls on member states to resolve post-conflict housing, land and property issues of refugees and IDPs, taking into account the Pinheiro Principles, the relevant Council of Europe instruments and Recommendation Rec(2006)6 of the Committee of Ministers. 10. Bearing in mind these relevant international standards and the experience of property resolution and compensation programmes carried out in Europe to date, member states are invited to: 10.1. guarantee timely and effective redress for the loss of access and right to housing, land and property abandoned by refugees and IDPs without regard to pending negotiations concerning the resolution of armed conflicts or the status of a particular territory; 10.2. ensure that such redress takes the form of restitution in the form of confirmation of the legal rights of refugees and displaced persons to their property and restoration of their safe physical access to, and possession of, such property. Where restitution is not possible, adequate compensation must be provided, through the confirmation of prior legal rights to property and the provision of money and goods having a reasonable relationship to their market value or other forms of just reparation; 10.3. ensure that refugees and displaced persons who did not have formally recognised rights prior to their displacement, but whose enjoyment of their property was treated as de facto valid by the authorities, are accorded equal and effective access to legal remedies and redress for their dispossession. This is particularly important where the affected persons are socially vulnerable or belong to minority groups; ... 10.5. ensure that the absence from their accommodation of holders of occupancy and tenancy rights who have been forced to abandon their homes shall be deemed justified until the conditions that allow for voluntary return in safety and dignity have been restored; 10.6. provide rapid, accessible and effective procedures for claiming redress. Where displacement and dispossession have taken place in a systematic manner, special adjudicatory bodies should be set up to assess claims. Such bodies should apply expedited procedure that incorporate relaxed evidentiary standards and facilitated procedure. All property types relevant to the residential and livelihood needs of displaced persons should be within their jurisdiction, including homes, agricultural land and business properties; 10.7. secure the independence, impartiality and expertise of adjudicatory bodies including through appropriate rules on their composition that may provide for the inclusion of international members. ...” 2. PACE Resolution 1497 (2006) on refugees and displaced persons in Armenia, Azerbaijan and Georgia 101. In this Resolution, the Parliamentary Assembly notably called on Armenia, Azerbaijan and Georgia “12.1. to focus all their efforts on finding a peaceful settlement of the conflicts in the region with a view to creating conditions for the voluntary return of refugees and displaced persons to their places of origin, safely and with dignity; ... 12.4. to make the return of the displaced persons a priority and do everything possible in their negotiations so as to enable these people to return in safety even before an overall settlement; ... 12.15. to develop practical co-operation as regards the investigation of the fate of missing persons and to facilitate the return of identity documents and the restitution of property in particular, making use of the experience of handling similar problems in the Balkans.” 3. Recommendation Rec( 2006)6 of the Committee of Ministers to member states on internally displaced persons 102. The Committee of Ministers recommended notably the following: “8. Internally displaced persons are entitled to the enjoyment of their property and possessions in accordance with human rights law. In particular, internally displaced persons have the right to repossess the property left behind following their displacement. If internally displaced persons are deprived of their property, such deprivation should give rise to adequate compensation; ” THE LAW I. INTRODUCTION 103. By its decision of 14 December 2011, the Court declared the applicants ’ complaints admissible. It also examined the six preliminary objections raised by the Government under Article 35 of the Convention. Three of them – concerning the question whether the matter had already been submitted to another procedure of international investigation or settlement, the lack of jurisdiction ratione temporis and the failure to respect the six-month rule – were rejected. The other three objections were joined to the merits and will be examined below in the following order: exhaustion of domestic remedies, the applicants ’ victim status, and the Government ’ s jurisdiction over the territory in question. II. EXHAUSTION OF DOMESTIC REMEDIES A. The parties ’ submissions 1. The applicants 104. The applicants submitted that the Armenian authorities had prevented them as displaced persons from returning to their homes and that this reflected an acknowledged official policy and, accordingly, an administrative practice. In these circumstances, they did not have access to any domestic remedies. 105. Moreover, there were no remedies known to them – in Armenia or in the “NKR” – that could be effective in respect of their complaints. Allegedly, the lack of domestic remedies was most clearly shown by the international discussions regarding the right of return of internally displaced persons. Constituting one of the major differences between the parties to the ongoing Minsk Group negotiations, this issue remained unresolved. The applicants had not lodged any “applications” to return and questioned whether there was a forum to which such a request could be submitted. Allegedly, a request would in any event be entirely fruitless. Furthermore, given Armenia ’s denial of any involvement in the events relating to the conflict in Nagorno-Karabakh, the applicants asserted that it would be contradictory to have expected them to have approached the Armenian authorities. 106. The applicants further maintained that the Government bore the burden of proof to show that a remedy existed and that it was effective both in theory and in practice and, in particular, that it had been successfully used by litigants in a position similar to theirs. They argued that the Government had failed to discharge this burden. More specifically, none of the examples of cases given by the Government in their observations to the Chamber in July 2007 related to the right to return to enjoy properties or private and family life. Only in their July 2012 observations had the Government pointed to some constitutional remedies in Armenia and the “NKR” and claimed that the applicants had always been able to enter the disputed territories, at least for the purpose of exercising their legal rights. Read in conjunction with the Government ’ s previous observations, where these remedies had not been mentioned and where the return of and compensation to displaced persons were conditioned on a comprehensive and final conflict - resolution agreement, the 2012 submissions lacked credibility. Furthermore, they had not contained any examples of redress actually offered to Azerbaijani nationals for breaches of the type of rights referred to in the present case. 2. The Government 107. The Government submitted that the applicants had failed to exhaust domestic remedies, as they had not shown that they had taken any steps to protect or restore their rights. In particular, the applicants had not applied to any judicial or administrative body of the Republic of Armenia. Furthermore, maintaining that the territories in question were under the jurisdiction and control of the “NKR”, the Government claimed that the “NKR” had all the judicial and administrative bodies capable of protecting the rights of individuals. The applicants had purportedly been able to obtain visas to both Armenia and the “NKR” to seek legal advice, even free of charge from “public defender” services, and bring restitution or compensation claims against the Armenian army and authorities or the “NKR” before independent and unbiased courts. As far as Armenia was concerned, this opportunity had existed ever since the ratification of the Convention in April 2002. The positions taken in the Minsk Group negotiations concerned the return of all displaced persons and were of no relevance to the situation of individuals who wished to exercise their legal rights. 108. Moreover, the Government argued that the constitutions and other laws in Armenia and the “NKR”, in particular their Land Codes and Civil Codes, protected individuals ’ right to property, provided for the restitution of or compensation for dispossessed land and made no distinction between the rights of nationals and foreigners. 109. In order to show the effectiveness of Armenian remedies for people of Kurdish or Azeri ethnicity, in June 2007 the Government submitted three court cases: one concerned the amnesty granted to a convicted person, allegedly of Azerbaijani nationality, one related to the friendly settlement reached between a Kurdish person and his employer in a dispute regarding unpaid wages, and one concerned the dispute between another Kurdish person and a local Armenian administration over the prolongation of a land - lease contract. Furthermore, the Government submitted three cases examined by “NKR” courts to demonstrate that there were effective judicial remedies in that region: two concerned the criminal convictions of persons of Armenian ethnicity living in the “NKR” and the remaining one concerned an inheritance dispute between two private individuals, allegedly of Armenian ethnicity. 3. The Azerbaijani Government, third-party intervener 110. According to the Azerbaijani Government, the respondent Government had failed to fulfil their obligation to specify which remedies existed in either Armenia or the “NKR” that could be effective in the circumstances, and had further failed to provide any example of a displaced Azerbaijani national having had successful recourse to such claimed, albeit totally unspecified, remedies. In this connection, the Azerbaijani Government asserted that the Land Codes of Armenia and the “NKR” did not provide any rules or mechanisms by virtue of which persons displaced in circumstances similar to the applicants ’ could obtain restitution of or compensation for their dispossessed property. 111. Furthermore, in the light of the general context, there was allegedly no need to exhaust domestic remedies due to administrative practices and special circumstances. Reference was made, inter alia, to the continuing tension and hostility in the region, the application of martial law within Nagorno-Karabakh and the other occupied territories, and the deliberate policy of encouraging Armenian settlers to move into, in particular, the district of Lachin. 112. The Azerbaijani Government further asserted that any remedies that the respondent Government would argue were available before the Armenian courts and organs could not by definition be effective in view of Armenia ’ s declared view that the “NKR” was an independent State within whose jurisdiction and control Lachin was to be found. Moreover, the territorial framework relevant to the “NKR” “ Declaration of Independence” in September 1991 excluded the other areas of Azerbaijan occupied later, including Lachin, over which, accordingly, the “NKR” courts were constitutionally incapable of exercising jurisdiction. B. The Court ’ s assessment 1. Admissibility of additional submissions 113. It should first be noted that, on 20 January 2014 – two weeks after the extended time-limit set by the Court for the submission of additional documentary material – the Government presented several documents, including two judgments which purportedly acknowledged the ownership rights to private houses and the surrounding land situated in the disputed territories of two displaced plaintiffs of Azerbaijani nationality. The judgments had been issued in 2003 and 2005 by the “First Instance Court of the Republic of Nagorno-Karabakh”. 114. On 22 January 2014 the President of the Court, after consulting the Grand Chamber, decided, in accordance with Rules 38 § 1 and 71 § 1 of the Rules of Court, that the above- mentioned documents should not be included in the case file, because of their late submission. The Government had not given a satisfactory explanation as to why the documents could not have been filed in time. The Court notes, in this connection, that the Government were invited, on 8 June 2006, to submit observations on the case and that they, both then and later in the proceedings, were asked to specifically address the question of the exhaustion of remedies. No mention was made of the 2003 and 2005 judgments on any of these occasions. Consequently, these documents will not be taken into account. 2. General principles on exhaustion of domestic remedies 115. The Court reiterates that it is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV). The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdiction (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 69, ECHR 2010, and Kazali and Others v. Cyprus (dec.), nos. 49247/08 and 8 others, § 132, 6 March 2012). 116. The Court has set out the general principles pertaining to the exhaustion of domestic remedies in a number of judgments. In Akdivar and Others (cited above ), it held as follows (further case references deleted). “65. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article [35] of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity –, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights ... 66. Under Article [35] normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness ... Article [35] also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used ... 67. However, there is, as indicated above, no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the ‘ generally recognised rules of international law ’ there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal ... The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective ... 68. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement ... One such reason may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what they have done in response to the scale and seriousness of the matters complained of. 69. The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article [35] must be applied with some degree of flexibility and without excessive formalism ... It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case ... This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants.” 3. Application of these principles to the facts of the case 117. While maintaining that Armenia has no jurisdiction over Nagorno-Karabakh and, in particular, the district of Lachin, the Government claimed that the applicants could have been afforded redress by judicial and administrative bodies in Armenia and the “NKR”. They referred to provisions in the laws of the two entities concerning land disputes, including issues of restitution and compensation in case of someone else ’ s illegal possession. They also presented statements by domestic judges and officials to the effect that the courts of Armenia and the “NKR” are independent and impartial and are ready to adjudicate cases brought by Azerbaijani citizens without discrimination. The applicants and the Azerbaijani Government, for their part, asserted that the laws of Armenia and the “NKR” did not provide any redress for displaced persons who had been dispossessed of their property in circumstances similar to those of the applicants. 118. The Court finds that, for the question of exhaustion of domestic remedies, it need not determine whether Armenia can be considered to have jurisdiction over the area in question and whether such jurisdiction would have an effect on the operation of its domestic remedies on the issues of the restitution of or compensation for property situated in the disputed territories. The reason for this is that the Government have not shown that there is a remedy – in Armenia or in the “NKR” – capable of providing redress in respect of the applicant ’ s complaints. The legal provisions referred to by them are of a general nature and do not address the specific situation of dispossession of property as a result of armed conflict, or in any other way relate to a situation similar to that of the applicants. As regards the domestic judgments submitted by way of example in June 2007 (see paragraph 109 above), none of them relate to claims concerning the loss of homes or property by persons displaced in the context of the Nagorno-Karabakh conflict. 119. It should also be noted that Armenia has denied that its armed forces or other authorities have been involved in the events giving rise to the complaints in the present case, or that Armenia exercises – or has at any point in time exercised – jurisdiction over Nagorno-Karabakh and the surrounding territories. Given such a denial of involvement or jurisdiction, it would not be reasonable to expect the applicants to bring claims for restitution or compensation before the Armenian courts and authorities. Regard must further be had to the political and general context. As a consequence of the war, virtually all Azerbaijanis have left the disputed territories. No political solution of the conflict has been reached. Rather, the hostile rhetoric between the leaders of Armenia and Azerbaijan appears to have intensified, ceasefire breaches are recurrent and the military build-up in the region has escalated in recent years. In these circumstances, it is not realistic that any possible remedy in the unrecognised “NKR” entity could in practice afford displaced Azerbaijanis effective redress. 120. In these circumstances, the Court considers that the Government have failed to discharge the burden of proving the availability to the applicants of a remedy capable of providing redress in respect of their Convention complaints and offering reasonable prospects of success. The Government ’ s objection of the non-exhaustion of domestic remedies is therefore dismissed. III. THE APPLICANTS ’ VICTIM STATUS A. The parties ’ submissions 1. The applicants 121. The applicants maintained that they had submitted documentation with their application and their subsequent observations in the case that constituted sufficient proof of their identity and of the fact that they owned or had the right to use identifiable property in the territory in question and that they had been residing there when they had had to flee in May 1992. They referred, inter alia, to the technical passports, statements by witnesses and invoices for building materials and building subsidies. As regards the technical passports, the applicants maintained that they, in all details, complied with the formal requirements under the domestic law in force at the material time. They explained that the discrepancies between the statements made in the application form and the specifications contained in the passports were due to the statements given to their representative in difficult circumstances in Baku in early 2005 during a brief meeting. The original statements were made from memory, without access to documents, and it was therefore the information contained in the passports that was correct and should be taken into account. The applicants further asserted that the passports constituted secondary evidence of their possessions. In addition, the sixth applicant had submitted primary evidence in the form of an abstract from the session protocol of the Soviet of People ’ s Deputies of Lachin District of 29 January 1974 that contained the decision to allocate land to him. When they fled, they had not had the time to take all of their papers with them. Furthermore, there had not been a centralised land register at the time from which they could have obtained further documents. 122. The applicants claimed that, under the 1970 Land Code and the 1983 Housing Code of the Azerbaijan SSR, still in force at the time of their flight, a citizen had a right of ownership to his individual house and an inheritable right to use a plot of land in line with the purposes for which it had been allocated. Both rights allegedly constituted possessions within the meaning of Article 1 of Protocol No. 1. Moreover, the 1991 Law on property in Azerbaijan made reference to a land plot as the object of individual ownership and thus gave the applicants a legitimate expectation of becoming owners of land. 2. The Government 123. The Government contended that, with the exception of the sixth applicant, the applicants had not submitted any evidence with their application that could prove that they in fact had any property, let alone that the property was located on the territory claimed and that they had owned it at the relevant time. In the Government ’ s view, it was remarkable that, although they all claimed to have fled empty-handed, the technical passports of the other five applicants had later appeared out of nowhere. Furthermore, the statements of friends and neighbours submitted to the Court amounted to no more than hearsay. In respect of all the applicants, the Government maintained that they had failed to prove “beyond reasonable doubt” that they were the persons they claimed to be, that they had resided in the territories specified by them or that they owned the property in question. In particular, the documents provided by them contained numerous contradictions and inaccuracies. For instance, the second applicant had first claimed to have lived in the village of Chirag and had then changed this to Chiragli. Moreover, most of the technical passports submitted as proof of ownership gave different figures with regard to the size of the houses to the figures stated by the applicants themselves. The Government also claimed that a technical passport is a document showing the technical condition of a building and nothing else, unless its origin and provenance is established. 124. The Government further questioned whether the applicants had ever held a right to the alleged properties that had been recognised under the law in force in 1992 or certified by the appropriate authority. In particular, under the socialist system of the USSR before 1991, land was under the exclusive ownership of the State. While the 1991 Law on property recognised the possibility of private ownership, it did not transfer ownership of land occupied by individuals to them. With respect to individual land users and lessees, the legislation set out that their rights were formalised through a certificate, which was registered in a land register kept by the local Soviet of People ’ s Deputies. Thus, no rights to land could be asserted without such a registered certificate. Furthermore, the Azerbaijani 1992 Land Code stipulated that the rights of a user or lessee could be extinguished following a failure to use the land for a period of two years. As the applicants had not returned to the district of Lachin since 1992, the Government presumed that their alleged rights had been terminated before Armenia became subject to the jurisdiction of the Court in 2002. Furthermore, the applicants ’ claimed legitimate expectation to become owners of land was no longer a realistic expectation in 2002. Furthermore, before that date, the applicants ’ alleged property had been allocated to other individuals, with their names recorded on the land register in accordance with the laws of the “NKR”. Thus, the applicants had no “existing possessions” but were merely claimants seeking to have their property restored or to receive compensation. The Government maintained that no domestic legislation or judicial decision existed which gave rise to a legitimate expectation of such restitution or compensation. However, in the same observations, the Government stated that the “NKR” had not adopted any legal act that deprived the applicants of the right to enter the territory of Lachin or of the right to peacefully enjoy their property. 3. The Azerbaijani Government, third-party intervener 125. The Azerbaijani Government pointed out that almost all displaced persons had had to flee their homes in the occupied territories quickly, without having had the time to collect documents. At the material time, it was impossible to obtain property documents as the records had been kept by the local authorities, and their archives had most likely been destroyed. Nevertheless, a technical passport was classified as an “inventory-technical” document that served to indirectly establish the right to an individual house where the original document was missing. This document constituted secondary evidence of title to a house or a plot of land if its text directly referred to documents confirming the property rights. Such a reference was included in the applicants ’ technical passports. Thus, considered together with the witness statements and building invoices submitted, they demonstrated that the applicants owned individual houses and had the right to use the land plots allotted to them. These rights still existed. 126. The Azerbaijani Government further stated that, at the time of the applicants ’ flight, private ownership of individual houses was protected by the laws of the Azerbaijan SSR, as in force at the material time. No private ownership existed, however, in regard to land, which was exclusively owned by the State. All land transactions were prohibited, but plots of land were allotted by decision of the local authority, the Soviet of People ’ s Deputies, to citizens for their use for a definite or indefinite period of time, free of charge. The right of use, which was an inheritable title, was granted for purposes such as individual housing, namely the construction of privately owned houses, as well as pasture, haymaking and farming. Furthermore, the 1991 Law on property in Azerbaijan, while not yet enforceable at the relevant time, had added a legitimate expectation for the applicants to become owners of land. B. The Court ’ s assessment 127. The examination of the issue of the applicants ’ victim status is twofold. First, it must be assessed whether the applicants have submitted sufficient proof of their personal identity and former residence as well as the existence of the assets they allegedly left behind. If so, it needs to be determined whether these assets constitute “possessions” and help create “homes” under the Convention. For the determination of the second issue, the domestic legal classification or significance of these terms is of importance. 1. General principles on assessment of claims relating to property and homes of displaced persons 128. The Court has previously dealt with cases concerning the property and housing rights of persons who have been displaced as a result of an international or internal armed conflict. The issues have arisen in the context of the occupation of northern Cyprus, the actions of the security forces in Turkey and Russia, and in some other conflict situations. 129. The Court examined for the first time the rights of displaced persons to respect for their homes and property in Loizidou v. Turkey ((merits), 18 December 1996, Reports 1996-VI). The applicant claimed to be the owner of a number of plots of land in northern Cyprus. The Turkish Government did not call into question the validity of the applicant ’ s title, but argued that she had lost ownership of the land by virtue of Article 159 of the 1985 Constitution of the “Turkish Republic of Northern Cyprus” (the “TRNC”) which declared all abandoned immovable properties to be the property of the “TRNC”. The Court, having regard to the lack of recognition of the “TRNC” as a State by the international community, did not attribute any legal validity to the provision and considered that the applicant could not be deemed to have lost title to her property as a result of it (§§ 42-47). 130. In a number of cases related to the above-mentioned conflict, the Court has established the applicants ’ “possession” within the meaning of Article 1 of Protocol No. 1 on the basis of prima facie evidence which the Government failed convincingly to rebut, including copies of original title deeds, registration certificates, purchase contracts and affirmations of ownership issued by the Republic of Cyprus. As explained by the applicant in Solomonides v. Turkey (no. 16161/90, § 31, 20 January 2009), his titles of ownership had been registered at the District Lands Office. However, at the time of the Turkish military intervention he had been forced to flee and had been unable to take with him the title deeds. The Cypriot authorities had reconstructed the Land Books and had issued certificates of affirmation of title. These certificates were the best evidence available in the absence of the original records or documents. It is noteworthy that in Saveriades v. Turkey (no. 16160/90, 22 September 2009) the reasons why the applicant could not submit the original title deeds were specifically taken into account. The applicant argued that he had been forced to leave his premises, where the documents were held, in great haste and had subsequently been unable to return there or otherwise retrieve the title deeds. The Court accepted that the documents submitted by the applicant (such as a sale contract, ownership certificates and a building permit) provided prima facie evidence that he had a title of ownership over the properties in issue, and continued (§ 18): “... As the respondent Government failed to produce convincing evidence in rebuttal, and taking into account the circumstances in which the applicant had been compelled to leave northern Cyprus, the Court considers that he had a ‘ possession ’ within the meaning of Article 1 of Protocol No. 1.” 131. In Doğan and Others v. Turkey (nos. 8803 /02 and 14 others, ECHR 2004-VI) which concerned the forced eviction of villagers in the state-of-emergency region in south-east Turkey and the refusal to let them return for several years, the Government raised the objection that some of the applicants had not submitted title deeds attesting that they had owned property in the village in question. The Court considered that it was not necessary to decide whether or not in the absence of title deeds the applicants had rights of property under domestic law. The question was rather whether the overall economic activities carried out by the applicants constituted “possessions” coming within the scope of Article 1 of Protocol No. 1. Answering the question in the affirmative, it stated as follows (§ 139): “... [T]he Court notes that it is undisputed that the applicants all lived in Boydaş village until 1994. Although they did not have registered property, they either had their own houses constructed on the lands of their ascendants or lived in the houses owned by their fathers and cultivated the land belonging to the latter. The Court further notes that the applicants had unchallenged rights over the common lands in the village, such as the pasture, grazing and the forest land, and that they earned their living from stockbreeding and tree-felling. Accordingly, in the Court ’ s opinion, all these economic resources and the revenue that the applicants derived from them may qualify as ‘ possessions ’ for the purposes of Article 1.” 132. The autonomous meaning of the concept of “possessions” has been proclaimed in many judgments and decisions of the Court. In Öneryıldız v. Turkey ( [GC], no. 48939/99, § 124, ECHR 2004-XII), it was summarised as follows. “The Court reiterates that the concept of ‘ possessions ’ in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law: the issue that needs to be examined is whether the circumstances of the case, considered as a whole, may be regarded as having conferred on the applicant title to a substantive interest protected by that provision ... Accordingly, as well as physical goods, certain rights and interests constituting assets may also be regarded as ‘ property rights ’, and thus as ‘ possessions ’ for the purposes of this provision ... The concept of ‘ possessions ’ is not limited to ‘ existing possessions ’ but may also cover assets, including claims, in respect of which the applicant can argue that he has at least a reasonable and ‘ legitimate expectation ’ of obtaining effective enjoyment of a property right ...” In that case, the Court considered that a dwelling illegally erected on public land next to a rubbish tip, where the applicant and his family had lived undisturbed, albeit unauthorised, while paying council tax and public - service charges, represented a proprietary interest which, de facto, had been acknowledged by the authorities and was of a sufficient nature to constitute a possession within the meaning of Article 1 of Protocol No. 1. 133. The question whether the applicants had substantiated their claim under Article 1 of Protocol No. 1 has also arisen in a number of cases against Russia where the applicants ’ houses or other property were destroyed or damaged as a result of aerial attacks on the towns where they lived. For instance, in Kerimova and Others v. Russia (nos. 17170/04 and 5 others, § § 29 2 -9 3, 3 May 2011), the Court accepted the claim of ownership by some of the applicants on the basis of extracts from a housing inventory issued by the town administration after the attack which showed that the applicants were the owners of their houses. As regards the applicants who had submitted no proof of title, the Court established their property right on the basis of other evidence, such as a certificate of residence issued by the town administration. The Court also considered it likely that any documents confirming the applicants ’ title to the houses had been destroyed during the attack. 134. In situations where it has been established that the applicant was the owner of a house, the Court has not required further documentary evidence of his or her residence there to show that the house constituted a “home” within the meaning of Article 8 of the Convention. For example, in Orphanides v. Turkey (no. 36705/97, § 39, 20 January 2009), it stated as follows: “The Court notes that the Government failed to produce any evidence capable of casting doubt upon the applicant ’ s statement that, at the time of the Turkish invasion, he was regularly residing in Lapithos and that his house was treated by him and his family as a home.” 135. However, if an applicant does not produce any evidence of title to property or of residence, his complaints are bound to fail (see, for example, Lordos and Others v. Turkey, no. 15973/90, § 50, 2 November 2010, where the Court declared a complaint incompatible ratione materiae in the absence of evidence of ownership; see also the conclusion as to some applicants in Kerimova and Others, cited above ). In several cases the Court has reiterated that the applicants are required to provide sufficient prima facie evidence in support of their complaints. In Damayev v. Russia (no. 36150/04, §§ 108 ‑ 11, 29 May 2012), it considered that an applicant complaining of the destruction of his home should provide at least a brief description of the property in question. Since no documents or detailed claims were submitted, his complaint was found to be unsubstantiated. As further examples of prima facie evidence of ownership of or residence on property, the Court has mentioned documents such as land or property titles, extracts from land or tax registers, documents from the local administration, plans, photographs and maintenance receipts as well as proof of mail deliveries, statements of witnesses or any other relevant evidence (see, for instance, Prokopovich v. Russia, no. 58255/00, § 37, ECHR 2004-XI, and Elsanova v. Russia (dec.), no. 57952/00, 15 November 2005). 136. In sum, the Court ’ s case-law has developed a flexible approach regarding the evidence to be provided by applicants who claim to have lost their property and home in situations of international or internal armed conflict. The Court notes that a similar approach is reflected in Article 15 § 7 of the Pinheiro Principles (see paragraph 98 above). 2. Application of these principles to the facts of the case (a) Proof of identity and place of residence 137. While the applicants, at the time of lodging the present application, did not submit documents showing their identity and place of residence, they did so following the Grand Chamber ’ s request in April 2010. The documents included their and their children ’s birth certificates, marriage certificates, USSR passports, work records and extracts from military - service books (for details, see paragraphs 33-57 above). In the Court ’ s view, these documents demonstrate that all the applicants were born in the district of Lachin and that they lived and worked there, at least for major parts of their lives. Having regard to the applicant ’ s own statements – and in the absence of any evidence to the contrary – they must be deemed to have still lived there with their families at the time when they fled on 17 May 1992. (b) Proof of possessions 138. The applicants claimed that they owned or had protected rights to land, houses and certain moveable property that they were forced to leave behind when they fled. It is not known whether any of the houses are still intact and the claimed moveable property is most certainly no longer in existence. Thus, what remain are mainly the plots of land. 139. Originally, only the sixth applicant submitted a document relating to property, a so-called technical passport. The other applicants presented such evidence only when they replied to the Government ’ s first observations. In addition to technical passports, they all submitted witness statements from former neighbours who affirmed that the applicants owned houses in the respective villages, as well as statements by representatives of an Azerbaijani administration for Lachin. The sixth applicant also presented a decision on land allocation taken by the Lachin District Soviet of People ’ s Deputies as well as invoices for animal feed, building materials and building subsidies. 140. The most significant pieces of evidence supplied by the applicants are the technical passports. Being official documents, they all contain drawings of houses, and state, among other things, their sizes, measurements and the number of rooms. The sizes of the plots of land in question are also indicated. The passports are dated between July 1985 and August 1990 and contain the applicants ’ names. Moreover, it appears that the passports include references to the respective land allocation decisions. 141. Having regard to the submissions of the Azerbaijani Government, the Court considers that the applicants ’ technical passports must be seen as “inventory-technical documents” constituting indirect evidence of title to houses and land which, in addition, conforms with Article 2. 2 of the 1985 Instructions on Rules of Registration of Housing Facilities (see paragraph 92 above). Furthermore, the land - allocation decision supplied by the sixth applicant represents primary evidence under Article 2. 1 of those Instructions. While the Government have contested the probative value of the passports, claiming that they show the technical condition of a building and nothing else, the Court notes that they do not simply contain specifications of the houses in question but also include the applicants ’ names. In these circumstances, they provide such prima facie evidence of title to property that has been accepted by the Court in many previous cases. 142. It is noteworthy that, except for the fifth and sixth applicants, there are discrepancies between the applicants ’ initial descriptions of their houses and the figures contained in the technical passports presented later in the proceedings. For example, the first applicant originally stated that he owned a 250 sq. m house. The technical passport submitted, however, concerns a house of a total area of 408 sq. m and 300 sq. m living area ( and a 60 sq. m storehouse, not previously mentioned). Similarly, the fourth applicant originally claimed that his house had a 165 sq. m area, whereas the house described in the passport measures 448 sq. m in total and has a 223 sq. m living area ( and a 75 sq. m storehouse, not previously mentioned ). The applicants have stated that it is the information contained in the technical passports that is correct and that their original statements were made from memory at a brief meeting with their representative when they did not have access to the documents. The Court can accept the applicants ’ explanation : the discrepancies between their original statements and the technical passports are, in the circumstances, not of the nature to discredit the authenticity of the documents, in particular when the figures initially given by the applicants are compared with the living-area measurements specified in the passports. 143. The applicants have submitted further prima facie evidence in regard to property, including statements by former neighbours. In addition, the documents examined above in relation to the applicants ’ identities and residence, which show that they resided in the district of Lachin, lend support to their property claims. Moreover, while all but the sixth applicant have failed to present title deeds or other primary evidence, regard must be had to the circumstances in which they were compelled to leave the district, abandoning it when it came under military attack. Accordingly, taking into account the totality of evidence presented, the applicants have sufficiently substantiated their claims that they were in possession of houses and land at the time of their flight. (c) Whether the applicants ’ rights fall under Article 1 of Protocol No. 1 and Article 8 of the Convention 144. It remains to be determined whether the applicants had – and still have – rights to property which are protected by Article 1 of Protocol No. 1 and whether the property, considered together with the other personal circumstances of the applicants, have constituted their homes within the meaning of Article 8 of the Convention. As has been mentioned above (see paragraph 132), the concept of “possessions” in Article 1 of Protocol No. 1 has an autonomous meaning and is not dependent on the formal classification in domestic law. However, when addressing this issue, it should first be established whether domestic law and practice conferred or acknowledged rights which are protected under the Convention. 145. First, it should be noted that, although the land legislation enacted shortly after Azerbaijan ’ s independence acknowledged for the first time the right of private ownership of land, a procedure whereby land could be privatised had not been introduced at the relevant time, that is, in May 1992. In any event, it is undisputed that no application had been made by the applicants to become owners of land. As, moreover, the rights acquired by individuals under the old legislation were not rescinded by the enactment of the 1991/92 property laws, the applicants ’ legal rights to the houses and land that they possessed at the time of their flight must be assessed with reference to the laws of the Azerbaijan SSR. 146. Under the Soviet legal system, citizens had a right to own residential houses, but there was no private ownership of land, which instead was considered State property. For the Azerbaijan SSR (including Nagorno-Karabakh and the district of Lachin and the other surrounding territories now under occupation), these rules were laid down in the 1978 Constitution as well as the 1970 Land Code and the 1983 Housing Code. Article 10.3 of the Housing Code provided for the ownership of houses, and the Land Code, notably Articles 4, 25, 27 and 28, laid down the rules and procedures for the allocation of land to individuals for their use. Consequently, the houses that the applicants inhabited in the district of Lachin were part of their personal property, whereas they only had a “right of use” of the plots of land on which these houses stood. As has already been mentioned (see paragraph 138), the moveable property – livestock, carpets, cars – that the applicants claimed to have possessed (the rights to which were also protected by the laws of the Azerbaijan SSR) is likely to have been destroyed during the military attack on Lachin or in the subsequent years. It is further unclear whether their houses have been destroyed or are still partly or wholly intact. Consequently, it is of crucial importance to examine the significance of the “right of use”. 147. The “right of use” was the only title to land that an individual could acquire. Granted by the local Soviet of People ’ s Deputies, the right could be given for several different purposes, including pasture and farming and – most importantly in the context of the present case – the erection of a house. The beneficiaries were obliged to use the plots of land strictly for the purposes for which they had been allocated. The “right of use” was conferred indefinitely or for a temporary period. Thus, if the individual held an indefinite “right of use” and complied with the purpose specified, he or she could use the land for life. Moreover, the right was inheritable. There is no doubt, therefore, that the “right of use” conferred on the applicants was a strong and protected right which represented a substantive economic interest. While there is no indication that the applicants ’ rights were of a temporary nature, the Court notes, for the sake of completeness, that this conclusion is applicable to both indefinite and temporary “rights of use”. Having regard to the autonomous meaning of Article 1 of Protocol No. 1, the “right of use” of land thus constituted a “possession” under that provision. This conclusion applies also to the rights held by individuals to residential houses and moveable property. 148. In their observations submitted on 11 July 2012, the Government stated that the applicants ’ rights to land would presumably have been terminated by virtue of Article 32 §§ 1 to 8 of the 1992 Land Code, as they had not returned to their land since May 1992 and had thus failed to use it for two successive years. The Government further claimed that, in any event, the land had been allocated to other individuals in accordance with the laws of the “NKR”. In support of the second claim, they submitted a number of “NKR” land - registry documents from 2000 and 2001. In regard to the Government ’ s first contention, the Court notes that terminating land rights under Article 32 of the 1992 Land Code necessitated a decision to that effect by the local Soviet of People ’ s Deputies and, moreover, required that the failure to use the land was without good reason. The latter can hardly be said to be the case here in view of the military presence in the relevant territories since 1992/93. In these circumstances, the claim, which amounts to no more than speculation, must be rejected. As to the Government ’ s second contention, it is unclear to which land or possessors the submitted land - registry documents refer. Moreover, the claim seems to contradict the statement that the “NKR” had not adopted any legal act that deprived the applicants of the right to the peaceful enjoyment of their property. In any event, this issue has already been examined at the admissibility stage in regard to the Court ’ s jurisdiction ratione temporis following a similar claim by the Government. The claim was rejected on the following grounds ( see Chiragov and Others v. Armenia (dec.), no. 13216/05, § 102, 12 February 2012 ): “At a late stage of the proceedings, the Armenian Government introduced the claim that the authorities of the ‘ NKR ’, in 1998, had enacted a law on privatisation and a Land Code, which had extinguished the land rights of the applicants and other people who had fled the occupied territories. The texts of these laws have not been submitted to the Court. In any event, the Court notes that the ‘ NKR ’ is not recognised as a State under international law by any countries or international organisations. Against this background, the invoked laws cannot be considered legally valid for the purposes of the Convention and the applicants cannot be deemed to have lost their alleged rights to the land in question by virtue of these laws (see Loizidou (merits), cited above, §§ 42-47).” 149. In conclusion, at the time of their leaving the district of Lachin, the applicants held rights to land and houses which constituted “possessions” within the meaning of Article 1 of Protocol No. 1. There is no indication that those rights have been extinguished since – legitimately or otherwise – whether before or after Armenia ’ s ratification of the Convention. Their proprietary rights are thus still valid. Since the applicants accordingly hold existing possessions, there is no need to examine their claim that they had a “legitimate expectation” to become formal owners of their land following the enactment of the 1992 Land Code. 150. Moreover, having regard to the above conclusion that the applicants lived in the district of Lachin with their families at the time of their flight and earned their livelihood there, their land and houses must also be considered to have constituted their “homes” for the purposes of Article 8 of the Convention. 151. The Government ’ s objection concerning the applicants ’ victim status is therefore dismissed. IV. ARMENIA ’S JURISDICTION A. The parties ’ submissions 1. The applicants 152. The applicants submitted that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories, in particular the district of Lachin, and that the matters complained of therefore fell within the jurisdiction of Armenia in accordance with Article 1 of the Convention. Alternatively, such jurisdiction derived from Armenia ’ s authority or control over the area in question through its agents operating there. The applicants asserted that the Court ’ s case-law on this issue was settled and referred, inter alia, to Loizidou (cited above), Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004-VII) and Al-Skeini and Others v. the United Kingdom ([GC], no. 55721/07, ECHR 2011). As regards the burden of proof, they maintained that the test was not “beyond reasonable doubt”; instead, in the present case, there was a presumption of fact that Armenia had jurisdiction over the mentioned territories, a presumption that the Government had failed to rebut. 153. The applicants claimed that Armenia ’ s military participation in the Nagorno-Karabakh conflict had been considerable and that the evidence to that effect was overwhelming. They submitted, inter alia, that Armenian conscripts had served in Nagorno-Karabakh. According to the above ‑ mentioned 1994 HRW report, Armenian conscripts had been sent to Nagorno-Karabakh and the surrounding Azerbaijani provinces, and military forces from Armenia had taken part in the fighting in Azerbaijan. The applicants also referred to statements by various political leaders and observers which point towards the involvement of the Armenian army, including the above-mentioned statements by Mr Robert Kocharyan and Mr Vazgen Manukyan (see paragraph 62 above ). 154. The applicants also adduced as evidence of Armenian army involvement in the military actions the capture of a number of its soldiers by Azerbaijani units and the increased Armenian draft requirements at the material time. They further submitted that conscripts of the Armenian army were still sent to serve in Nagorno- Karabakh, that such service entitled the officers and soldiers to higher salaries than if they had served in Armenia, and that conscripts had no choice as to where they would like to be deployed, in Armenia or in Nagorno-Karabakh. In support of this assertion, they referred, inter alia, to several judicial and administrative proceedings that had been taken in Stepanakert against Armenian military personnel and an Armenian conscientious objector. 155. In addition to committing troops to the conflict, Armenia had, according to the applicants, provided material aid to Nagorno-Karabakh. Allegedly, the country supplied as much as 90% of the enclave ’ s budget in the form of interest-free credits. These credits constituted financial assistance which contributed to Armenia ’ s effective control over Nagorno ‑ Karabakh and the surrounding territories. As to the Hayastan All ‑ Armenian Fund, the applicants submitted that it could not be seen as a distinct body independent of the government, as it had been established by presidential decree, its Charter designated the Armenian President as President of the Board of Trustees, and that Board otherwise included several of the highest-ranking representatives of the Armenian authorities, Parliament, Constitutional Court and Central Bank. Furthermore, its mission was to support sustainable development in both Armenia and Nagorno-Karabakh. 156. Moreover, Armenia had provided and continued to provide political support to Nagorno-Karabakh. Numerous key figures in Armenian politics had close ties to and continued to be involved in the political sphere in Nagorno-Karabakh. For example, in August 1993 the Government appointed Mr Serzh Sargsyan, the Minister of Defence of Nagorno-Karabakh, as Minister of Defence of Armenia, and in 1998 Mr Robert Kocharyan became President of Armenia, having previously been the Prime Minister and President of Nagorno-Karabakh. Furthermore, as the “NKR” remained unrecognised by the international community, it was reliant on Armenia for political support and its ability to enter into relations with other States. 157. The applicants further submitted that, in Nagorno-Karabakh, many Armenian laws were applied and the Armenian dram was the main currency in use. Moreover, people from Nagorno-Karabakh were issued with Armenian passports for the purpose of travelling abroad. 2. The Government 158. The Government submitted that Armenia’s jurisdiction did not extend to the territory of Nagorno-Karabakh and the surrounding territories; allegedly, Armenia did not and could not have effective control of or exercise any public power on these territories. In their view, effective control implied detailed direction or control over specific operations of the controlled entity, with the capacity to start and stop them as well as to determine their course. Pointing out that extraterritorial jurisdiction was an exception to the principle that a State had jurisdiction over its own territory, the Government maintained that the burden of proving such control was on the applicants, that the burden of proof should be of a high standard, and that they could not discharge this burden, as evidence rather showed that there was no Armenian influence, let alone control, over the “NKR”. The Government was of the opinion that Al-Skeini (cited above) was not relevant to the present circumstances as that judgment relied on “State agent authority and control” which did not apply to the facts of the present case. Furthermore, the merely supportive role played by Armenia in relation to the “NKR” was fundamentally different from the number of Turkish soldiers involved in northern Cyprus or the size of the Russian military arsenal present in Transdniestria (as established in Loizidou and Ilaşcu and Others, both cited above), and did not, under any reasonable definition, amount to effective control. 159. The Government asserted that Armenia had not participated in the military conflict in question. The attack on Lachin from 17 to 18 May 1992 – as well as the capture of Shusha/Shushi on 9 May – had been conducted by the “NKR” defence force, of which 90% was made up of people from Nagorno ‑ Karabakh. The military actions were actually against the interests of the Government, which was at the time negotiating a ceasefire agreement with the Azerbaijani leaders; a meeting had been held from 8 to 9 May in Tehran. Nonetheless, the capture of these two towns had been deemed necessary by the “NKR” forces in order to stop Azerbaijani war crimes and open up a humanitarian corridor to Armenia. 160. The Government further maintained that Armenia had not taken part in any subsequent military actions either. This was allegedly shown by the fact that there was not a single mention in any international document of Armenian army participation. Instead, these documents talked about “local Armenian forces”. Furthermore, the Armenian authorities had not adopted any legal acts or programmes or taken other official steps to get involved in the military actions, which had been entirely carried out by the “NKR” defence force, established in early 1992 following the enactment of the “NKR” Law on conscription. It had been assisted by the Armenian population in Nagorno-Karabakh and the surrounding territories as well as volunteers of Armenian origin from various countries. Armenia had only been involved in the war in so far as it had defended itself against Azerbaijani attacks on its territory within the recognised borders of Armenia. However, as Armenia and the “NKR” had a common enemy, their armed forces cooperated in various ways. 161. Armenia did not currently have any military presence in Nagorno ‑ Karabakh and the surrounding territories. No military detachment, unit or body was stationed there. In the district of Lachin there were no military units at all, as Lachin was at a considerable distance from the “NKR” border with Azerbaijan and there was therefore no need to keep units there. It could not be ruled out that some Armenian nationals may have served in the “NKR” defence force on a contractual and voluntary basis. Moreover, according to the 1994 Agreement on Military Cooperation between the Governments of the Republic of Armenia and the “ Republic of Nagorno ‑ Karabakh ” (“the 1994 Military Agreement”), draftees from Armenia, upon their consent, may perform their military service in the “NKR” and vice versa, as well as participate in military exercises organised in the “NKR” or in Armenia. The legal proceedings involving Armenian conscripts who had served in the “NKR” had a simple explanation: under the Agreement, criminal charges against Armenian conscripts were dealt with by the Armenian prosecutors and any such charges against Karabakhi conscripts were dealt with by the “NKR” authorities. However, only a small number of Armenian volunteer conscripts had served in Nagorno-Karabakh where they had moreover been under the direct command of the “NKR” defence force. 162. The Government further submitted that the “NKR”, since its formation, had carried out its political, social and financial policies independently. Armenia had not given any economic help to the “NKR” other than, for several years, providing the “NKR” with long-term loans for the implementation of specific projects, including the rebuilding of schools and other educational institutions and the provision of financial assistance to the families of soldiers killed in action. Such help had been provided by other countries as well. Moreover, the Fund played a great role in the development of the “NKR”. Its main mission was to provide financial assistance to Armenia and the “NKR”, using resources collected by the Armenian diaspora. While there were Armenian representatives on the Board of Trustees, the majority of the Board ’ s members were from the Armenian diaspora and the “NKR”. The Fund ’ s agenda was not set by the government; often the donors themselves decided to which projects their money should go. The only governmental assistance to the Fund was the provision of rent-free offices in a government building in Yerevan. Thus, it was not an instrument of control, but a non-political, charitable organisation, which had provided USD 111 million to the “NKR” for building schools and hospitals, reconstructing roads and villages, assisting with cultural events and subsidising work and education for the poor. Resources were also provided by other funds and international organisations. Charity and international investments in the “NKR” annually accounted for USD 20-30 million and 30-40 million respectively. 163. In the view of the Government, the “NKR” was a sovereign, independent State possessing all the characteristics of an independent State under international law. It exercised control and jurisdiction over Nagorno-Karabakh and the territories surrounding it. Only the laws and other legal acts of the “NKR” were applied on these territories, and it was normal for the “NKR” to have borrowed or adopted some laws from Armenia. The “NKR” had its own court system which operated entirely independently. Political elections were held in the “NKR”, and the fact that some individuals had been in high political office in both the “NKR” and Armenia was nothing out of the ordinary in the early days of both countries ’ independence. Armenia ’ s political support was limited to taking part in the settlement negotiations conducted within the framework of the Minsk Group, with a view to regulating the Nagorno-Karabakh conflict. “NKR” passports were issued to its citizens, who had political rights and civil duties on the basis of their citizenship. Armenian passports had been issued only to some residents of Nagorno-Karabakh so as to enable them to travel abroad. Several currencies, not only the Armenian dram, were used in the “NKR”. 164. The Government also asserted that the only facts relevant for the Court ’ s examination of the jurisdiction issue were those dating from May 1992 (“the causation question”) and post-April 2002 (“the jurisdiction question”). Evidence since 2002 demonstrated that Armenia and the “NKR” were friendly countries, with much in common and with close economic and social links, a military alliance and a shared ethnicity. Armenia had had some influence in so far as it had, from time to time, given financial and other assistance to the “NKR”. Furthermore, as a good neighbour and ally, it had helped to maintain, from its end, the humanitarian corridor in the district of Lachin. However, the Republic of Armenia and the “NKR” were different countries. 3. The Azerbaijani Government, third-party intervener 165. The Azerbaijani Government agreed with the applicants that Armenia exercised effective control of Nagorno-Karabakh and the surrounding territories, including the Lachin area. They invoked statements by various international and non-governmental organisations and the US Department of State, as well as many political leaders in claiming that, at the beginning of the 1990s, Armenian forces, fighting beside separatist Karabakhi forces, had occupied Nagorno-Karabakh as well as Lachin and the other surrounding territories and that these territories continued to be occupied by Armenia, which had soldiers stationed there. In the latter respect, they referred to Harutyunyan v. Armenia (no. 36549/03, ECHR 2007-III ) and Zalyan, Sargsyan and Serobyan v. Armenia ( ( dec.), nos. 36894/04 and 3521/07, 11 October 2007 ). The “NKR” was not an independent State, as claimed by the respondent Government, but a subordinate local administration surviving by virtue of the military and other support afforded by Armenia. Allegedly, it was not conceivable that the “NKR” defence force would exist in any recognisable form without the extensive support of Armenia, expressed, for example, in weapons, equipment, training and, above all, the constant provision of a highly significant percentage – if not an actual majority – of soldiers based in the occupied territories. 166. The Azerbaijani Government also submitted that the “NKR” could not survive – politically, economically or militarily – without the significant support provided by Armenia. They pointed, inter alia, to the close political links between Nagorno-Karabakh and Armenia which, moreover, had a strong personal element at the highest level. Furthermore, economic aid provided by Armenia was essential for the “NKR”. The Government referred to the Fund, which allegedly had to be seen as an organ of the Armenian State in relation to the aid given to Nagorno-Karabakh. The Fund had had a significant impact in the “NKR”, not just financially but also socially. Allegedly, it was carried by political will, reinforcing Nagorno-Karabakh ’ s economic dependency on Armenia and further integrating the “NKR” into Armenia. They also referred to the Armenian State loans, which constituted a major part of the “NKR” budget. Moreover, the Azerbaijani Government asserted that individuals residing in Nagorno-Karabakh and the surrounding territories were holders of Armenian passports. B. The Court ’ s assessment 167. While a State ’ s jurisdictional competence is primarily territorial, the concept of jurisdiction within the meaning of Article 1 of the Convention is not restricted to the national territory of the High Contracting Parties, and the State ’ s responsibility can be involved because of acts and omissions of their authorities producing effects outside their own territory. Article 1 of the Convention reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 1. General principles on extraterritorial jurisdiction 168. The Court has recognised the exercise of extraterritorial jurisdiction by a Contracting State when this State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government. The principles have been set out in several cases, including Ilaşcu and Others (cited above, §§ 311-19), Al-Skeini and Others (cited above, §§ 130-39) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, 19 October 2012 ). The relevant passages of Catan and Others read as follows. “103. The Court has established a number of clear principles in its case-law under Article 1. Thus, as provided by this Article, the engagement undertaken by a Contracting State is confined to ‘ securing ’ ( ‘ reconnaître ’ in the French text) the listed rights and freedoms to persons within its own ‘ jurisdiction ’ (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others [GC] (dec.), no. 52207/99, § 66, ECHR 2001-XII). ‘ Jurisdiction ’ under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004-VII, and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, 7 July 2011 ). 104. A State ’ s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 86; Banković and Others, cited above, §§ 61 [and] 67; Ilaşcu and Others, cited above, § 312; and Al-Skeini and Others, cited above, § 131). Jurisdiction is presumed to be exercised normally throughout the State ’ s territory ( see Ilaşcu and Others, cited above, § 312; Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases ( see Banković and Others, cited above, § 67, and Al-Skeini and Others, cited above § 131). 105. To date, the Court has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts ( see Al-Skeini and Others, cited above, § 132). 106. One exception to the principle that jurisdiction under Article 1 is limited to a State ’ s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State ’ s own armed forces, or through a subordinate local administration ( see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI; and Al-Skeini and Others, cited above, § 138). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State ’ s military and other support entails that State ’ s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights ( see Cyprus v. Turkey, cited above, §§ 76-77, and Al-Skeini and Others, cited above, § 138). 107. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State ’ s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94, and Al ‑ Skeini and Others, cited above, § 139). ... 115. ... As the summary of the Court ’ s case-law set out above demonstrates, the test for establishing the existence of ‘ jurisdiction ’ under Article 1 of the Convention has never been equated with the test for establishing a State ’ s responsibility for an internationally wrongful act under international law.” 2. Application of these principles to the facts of the case 169. The Court first considers that the situation pertaining in Nagorno - Karabakh and the surrounding territories is not one of Armenian State agents exercising authority and control over individuals abroad, as alternatively argued by the applicants. Instead, the issue to be determined on the facts of the case is whether Armenia exercised and continues to exercise effective control over the mentioned territories and as a result may be held responsible for the alleged violations. As noted by the Court in Catan and Others (cited above, § 107), this assessment will primarily depend on military involvement, but other indicators, such as economic and political support, may also be of relevance. 170. While the applicants used to live in the district of Lachin, the issue of jurisdiction does not concern solely this area. In fact, Lachin is one of the parts of the mentioned territories that is situated farthest away from the Line of Contact with Azerbaijan. The district is sheltered by Nagorno-Karabakh to the east, by the districts of Kelbajar as well as Gubadly and Jebrayil to the north and south and by Armenia to the west. To determine whether Armenia has jurisdiction in the present case, it is thus necessary to assess whether it exercises effective control over Nagorno-Karabakh and the surrounding territories as a whole. 171. Moreover, although responsibility for an alleged violation cannot be imputed to Armenia on the basis of events that took place before 26 April 2002, the date of its ratification of the Convention, facts relating to earlier events may still be taken into account as indicative of a continuing situation which still persisted after that date. (a) Military involvement 172. The Nagorno-Karabakh conflict escalated into a full-scale war in 1992 but had started already some years earlier, with calls for the incorporation of Nagorno-Karabakh into Armenia coming from both entities. More significantly, in December 1989, the Supreme Soviet of the Armenian SSR and the Nagorno-Karabakh Regional Council adopted a Joint Resolution on the reunification of Nagorno-Karabakh with Armenia and, in January 1990, a joint budget was established. It is clear that, since the beginning of the conflict, the Armenian SSR and Armenia have strongly supported the demands for Nagorno-Karabakh ’ s incorporation into Armenia or, alternatively, its independence from Azerbaijan. 173. The material available to the Court does not – and could not be expected to – provide conclusive evidence as to the composition of the armed forces that occupied and secured control of Nagorno-Karabakh and the seven surrounding districts between the outbreak of war in early 1992 and the ceasefire in May 1994. For instance, the UN Security Council Resolutions adopted in 1993, while expressing serious concern at the tension between Armenia and Azerbaijan, referred to invasion and occupation by “local Armenian forces” and urged Armenia to exert its influence on “the Armenians of the Nagorny-Karabakh region” (see paragraph 59 above). Nevertheless, the HRW report ( see paragraph 60 above ) attests to the involvement of the Armenian armed forces at this point in time. Furthermore, the Armenian Minister of Defence from 1992 to 19 93, Mr Vazgen Manukyan, acknowledged this state of affairs ( see paragraph 62 above ). 174. Moreover, in the Court ’ s view, it is hardly conceivable that Nagorno-Karabakh – an entity with a population of less than 150,000 ethnic Armenians – was able, without the substantial military support of Armenia, to set up a defence force in early 1992 that, against the country of Azerbaijan with a population of approximately seven million people, not only established control of the former NKAO but also, before the end of 1993, conquered the whole or major parts of seven surrounding Azerbaijani districts. 175. In any event, Armenia’s military involvement in Nagorno - Karabakh was, in several respects, formalised in June 1994 through the 1994 Military Agreement (see paragraph 74 above). In addition to identifying many military issues on which the two entities would work together, the agreement notably provides that conscripts of Armenia and the “NKR” may do their military service in the other entity. 176. Later reports and statements confirm the participation of Armenia ’ s forces in the conflict. For instance, while not leading to any agreement between the parties, the “package deal” and the “step-by-step” approach drafted within the Minsk Group in 1997 stated that the Armenian armed forces should withdraw to within the borders of Armenia (see paragraph 61 above). Similar demands were made by the UN General Assembly in March 2008 ( see paragraph 67 above ) and by the European Parliament in April 2012 ( see paragraph 70 above ). In January 2005 the Parliamentary Assembly of the Council of Europe, noting the occupation by Armenian forces of “considerable parts of the territory of Azerbaijan”, reaffirmed that independence and secession of a territory may not be achieved in the wake of “the de facto annexation of such territory to another state” ( see paragraph 64 above ). The International Crisis Group ( ICG ) report of September 2005 concluded, on the basis of statements by Armenian soldiers and officials, that “ [ t ] here is a high degree of integration between the forces of Armenia and Nagorno-Karabakh” ( see paragraph 65 above ). Indications of service of Armenian soldiers in the “NKR” can also be found in cases before the Court and elsewhere ( see paragraphs 76 - 77 above ). 177. As the Court stated in El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, § 163, ECHR 2012), it will, in principle, treat with caution statements given by government ministers or other high officials, since they would tend to be in favour of the government that they represent or represented. However, statements from high-ranking officials, even former ministers and officials, who have played a central role in the dispute in question are of particular evidentiary value when they acknowledge facts or conduct that place the authorities in an unfavourable light. They may then be construed as a form of admission (see in this context, mutatis mutandis, the judgment of the International Court of Justice in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America) ( Merits ) Judgment, ICJ Reports 1986, § 64). 178. Accordingly, it is striking to take note of the statements by Armenian representatives which appear to go against the official stance that the Armenian armed forces have not been deployed in the “NKR” or the surrounding territories. The statement by Mr Manukyan, the former Minister of Defence, has already been mentioned (see paragraph 62 above). Of even greater significance is the speech given by the incumbent President of Armenia, Mr Serzh Sargsyan, in January 2013, to leaders of the Ministry of Defence, in which he declared that the goal of Armenian foreign policy was to achieve legal recognition of the victory attained by “our Army” in the Nagorno-Karabakh war ( see paragraph 72 above ). It should be noted as well that the Government in the present case have acknowledged, with reference to the 1994 Military Agreement, that the Armenian army and the “NKR” defence force cooperate in a defence alliance. 179. While Mr Jirayr Sefilyan could not be considered an official representative of Armenia, as a prominent political figure and former military commander who had served during the war, the Court has regard to a statement he gave in an interview in October 2008 : “The whole world knows that the army of the NKR is a part of the armed forces of Armenia” ( see paragraph 68 above ). In contrast, the Court notes that the opinion of Dr Bucur-Marcu ( see paragraph 73 above ) was commissioned by the Government and thus must be treated with caution in the circumstances. 180. The number of Armenian soldiers serving in the “NKR” is in dispute; the Government have stated that they number no more than 1,500 persons while the applicants rely on the figures given by the IISS and the ICG between 2002 and 2005 which indicated that 8,000 or 10,000 Armenian troops are deployed in Nagorno-Karabakh (see paragraphs 63 and 65 above). The Court need not solve this issue as, based on the numerous reports and statements presented above, it finds it established that Armenia, through its military presence and the provision of military equipment and expertise, has been significantly involved in the Nagorno-Karabakh conflict from an early date. This military support has been – and continues to be – decisive for the conquest of and continued control over the territories in issue, and the evidence, not least the Agreement, convincingly shows that the Armenian armed forces and the “NKR” are highly integrated. (b) Other support 181. The integration of the two entities is further shown by the number of politicians who have assumed the highest offices in Armenia after previously holding similar positions in the “NKR” (see paragraph 78 above). The general political support given to the “NKR” by Armenia is also evident from the statements mentioned above in regard to Armenia ’ s military involvement. 182. The Government have claimed that the “NKR” has its own legislation and its own independent political and judicial bodies. However, its political dependence on Armenia is evident not only from the interchange of prominent politicians, but also from the fact that its residents acquire Armenian passports for travel abroad as the “NKR” is not recognised by any State or international organisation (see paragraph 83 above). In regard to the legislation and the judiciary, there is further evidence of integration. The Government have acknowledged that several laws of the “NKR” have been adopted from Armenian legislation. More importantly, the facts of Zalyan, Sargsyan and Serobyan ( see paragraph 76 above ) show not only the presence of Armenian troops in Nagorno-Karabakh but also the operation of Armenian law - enforcement agents and the exercise of jurisdiction by Armenian courts on that territory. The case of Mr Grigoryan ( see paragraph 77 above ) provides a similar indication. 183. Finally, the financial support given to the “NKR” from or via Armenia is substantial. The ICG reported that, in the 2005 “NKR” budget, only 26.7 % of expenditures were covered by locally collected revenues. An Armenian “inter- State loan” has provided the “NKR” with considerable amounts of money, throughout 2004 and 2005, totalling USD 51 million. According to the ICG, relying on official sources, the loan made up 67.3% of the “NKR” budget in 2001 and 56.9% in 2004. The loan has been in place since 1993, and in 2005, the year of the report, none of the loan had been repaid (see paragraphs 80 - 81 above). 184. Further assistance is provided by the Hayastan All-Armenian Fund which, according to the Government, allocated about USD 111 million to projects in the “NKR” between 1995 and 2012. While the Fund is not a governmental institution and its resources come from individual donations, it is noteworthy that it was established by presidential decree. Furthermore, the Armenian President is the ex officio President of the Board of Trustees, and the Board includes several present and former Presidents and ministers of Armenia and the “NKR”, as well as other prominent officials of Armenia. While these members do not make up a majority, it is clear from the Board ’ s composition that the official representatives of Armenia – together with their “NKR” counterparts – are in a position to greatly influence the Fund ’ s activities. 185. It is true that substantial financial assistance to the “NKR” also comes from other sources, including the US government and direct contributions from the Armenian diaspora. Nevertheless, the figures mentioned above show that the “NKR” would not be able to subsist economically without the substantial support stemming from Armenia. (c) Conclusion 186. All of the above reveals that Armenia, from the early days of the Nagorno-Karabakh conflict, has had a significant and decisive influence over the “NKR”, that the two entities are highly integrated in virtually all important matters and that this situation persists to this day. In other words, the “NKR” and its administration survive by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercises effective control over Nagorno ‑ Karabakh and the surrounding territories, including the district of Lachin. The matters complained of therefore come within the jurisdiction of Armenia for the purposes of Article 1 of the Convention. 187. The Government ’ s objection concerning the jurisdiction of Armenia over Nagorno-Karabakh and the surrounding territories is therefore dismissed. V. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 188. The applicants complained that the loss of all control over, as well as of all potential to use, sell, bequeath, mortgage, develop and enjoy, their properties amounted to a continuing violation of Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties ’ submissions 1. The applicants 189. The applicants submitted that their rights under Article 1 of Protocol No. 1 had been violated as a direct result of an exercise in governmental authority on the part of Armenia. They feared that their property had been destroyed or pillaged soon after they had been forced to flee the district of Lachin. Nevertheless, their complaint concerned an interference with all of their property, including land which remained in Lachin and which they still owned or had the right to use. The applicants claimed that they had continuously been denied access to their property, and that this constituted an interference that was far from being in accordance with law. Moreover, whatever the aim of the occupation of Lachin, the total exclusion of the applicants from their property and the possible destruction of it without the payment of compensation could not be seen as proportionate to the achievement of that aim. The applicants did not see any prospect of being permitted to return to the properties or anywhere else in the occupied territories in the foreseeable future. 2. The Government 190. The Government maintained that the applicants had not been prevented from entering the town of Lachin or the surrounding villages; in fact, they had never tried to enter these territories since their alleged flight and had not applied to the Armenian authorities or the “NKR” to have any of their rights protected or restored. As mentioned already in regard to the issue of the exhaustion of domestic remedies, Armenia ’ s position in the Minsk Group negotiations – that the return of displaced persons can be considered only after a final settlement of the status of the “NKR” has been agreed upon – referred to displaced persons as a group and did not concern who could obtain entry visas if they had a legitimate reason to enter the “NKR” or Armenia. Travel to the “NKR” involved no danger, as the only open entry point – the road from Yerevan to Stepanakert – is situated far away from the Line of Contact. The Government further asserted that the capture of Lachin – as well as Shusha /Shushi – was a lawful act of self-defence against war crimes committed by Azerbaijan, in particular military attacks on Stepanakert. It was necessary to create a “humanitarian corridor” to Armenia, as large numbers of people in Nagorno-Karabakh were killed or in danger of starving to death. Reiterating that the Republic of Armenia bore no responsibility for the actions alleged by the applicants, they submitted that there had been no violation of Article 1 of Protocol No. 1. 3. The Azerbaijani Government, third-party intervener 191. The Azerbaijani Government submitted that the applicants had not been expelled from the occupied territories in question by any legal act but had been forced to flee by virtue of the activities of the Armenian military forces. They were still physically prevented from entering the territories and enjoying their possessions, through the deployment of Armenian troops and land mines on the Line of Contact, while Armenians were being offered incentives to settle in the territories. This state of affairs was further shown by Armenia ’ s position in the Minsk Group negotiations on displaced persons returning home. Allegedly, the level and strength of Armenian sustenance of the subordinate local administration had not decreased but rather intensified over the years. The Azerbaijani Government therefore contended that Armenia was responsible for a continuing violation of the applicants ’ rights under Article 1 of Protocol No. 1. B. The Court ’ s assessment 192. The Court first refers to its above finding (see paragraph 149 above ) that, while it is uncertain whether the applicants ’ houses still stand, they all have existing rights to their plots of land which constitute “possessions” within the meaning of Article 1 of Protocol No. 1. Given that the matters complained of come within the jurisdiction of Armenia (see paragraph 186 above ), the question to be examined is whether Armenia is responsible for a violation of the applicants ’ rights to their possessions. 193. The applicants were forced to leave Lachin when the district came under military attack in May 1992. However, the Court ’ s task is not to scrutinise this event as such, but to determine whether the applicants have been denied access to their property since 26 April 2002, the date on which Armenia ratified the Convention, and whether they have thereby suffered a continuing violation of their rights. Earlier events may still be indicative of such a continuing situation. 194. As has been mentioned above (see paragraphs 11 8 -2 0 ), no effective domestic remedies, whether in Armenia or in the “NKR”, have been identified. Consequently, the applicants have not had access to any legal means whereby they could obtain compensation for loss of property or – more importantly in the present context – whereby they could gain physical access to the places where they used to live and thus to the property and homes left behind. The continuing denial of access is further shown by the Government ’ s assertion, albeit unproven, that the applicants ’ property – and, presumably, the property belonging to other displaced persons – had been allocated by the “NKR” administration to other individuals who had been recorded in the land register. 195. Moreover, twenty years after the ceasefire agreement, people displaced during the conflict have not been able to return to Nagorno ‑ Karabakh and the surrounding territories. The Court notes in this respect the Resolutions passed by the UN General Assembly and the European Parliament (see paragraphs 67 and 69 above). In the Court ’ s view, it is not realistic, let alone possible, in practice for Azerbaijanis to return to these territories in the circumstances which have prevailed throughout this period and which include the continued presence of Armenian and Armenian-backed troops, ceasefire breaches on the Line of Contact, an overall hostile relationship between Armenia and Azerbaijan and no prospect of a political solution yet in sight. 196. Consequently, there has been an interference with the applicants ’ rights under Article 1 of Protocol No. 1 in that they have continuously been denied access to their property and have thereby lost control over it and any possibility to use and enjoy it (see Loizidou (merits), cited above, § 63 ). This amounts to an interference with the peaceful enjoyment of their possessions. 197. The Government submitted that the capture of Lachin and the creation of a land link between Armenia and Nagorno-Karabakh involved a lawful act of self-defence. The Court takes note of the claims that the district of Lachin was of military - strategic importance and that there was a need to deliver food, medicine and other supplies into Nagorno-Karabakh. However, whether or not these circumstances could constitute a justification for interfering with the individual rights of residents in the area, the capture of Lachin in May 1992 has no direct bearing on the issue under examination which is whether the applicants ’ inability to return there and the consequent continuous denial of access to their property could be seen as justified. 198. Furthermore, the Court does not find that the ongoing negotiations within the Minsk Group on the issues relating to displaced persons provide a legal justification for the interference with the applicants ’ rights. These negotiations do not absolve the Government from taking other measures, especially when negotiations have been pending for such a long time (see, mutatis mutandis, Loizidou (merits), cited above, § 64, and Cyprus v. Turkey, cited above, § 188). In that connection the Court refers to Resolution 1708 (2010) on solving property issues of refugees and displaced persons of the Parliamentary Assembly of the Council of Europe which, relying on relevant international standards, calls on member States to “guarantee timely and effective redress for the loss of access and rights to housing, land and property abandoned by refugees and IDPs without regard to pending negotiations concerning the resolution of armed conflicts or the status of a particular territory” (see paragraph 100 above). 199. Guidance as to which measures the Government could and should take in order to protect the applicants ’ property rights can be derived from relevant international standards, in particular from the Pinheiro Principles (see paragraph 98 above) and the above-mentioned Resolution. At the present stage, and pending a comprehensive peace agreement, it would appear particularly important to establish a property - claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicants and others in their situation to have their property rights restored and to obtain compensation for the loss of their enjoyment. 200. The Court is fully aware that the Government has had to provide assistance to hundreds of thousands of Armenian refugees and internally displaced persons. However, while the need to provide for such a large group of people requires considerable resources, the protection of this group does not exempt the Government from its obligations towards another group, namely Azerbaijani citizens like the applicants who had to flee during the conflict. In this connection, reference is made to the principle of non-discrimination laid down in Article 3 of the Pinheiro Principles. Finally, the Court observes that the situation in issue is no longer an emergency situation but has continued to exist over a very lengthy period. 201. In conclusion, as concerns the period under scrutiny, that is, from 26 April 2002, no aim has been indicated which could justify the denial of access of the applicants to their property and the lack of compensation for this interference. Consequently, the Court finds that there has been and continues to be a breach of the applicants ’ rights under Article 1 of Protocol No. 1 for which Armenia is responsible. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 202. The applicants claimed that their inability to return to the district of Lachin also involved a continuing violation of their right to respect for their homes and private and family life. They relied on Article 8, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties ’ submissions 1. The applicants 203. The basis for the applicants ’ complaint was much the same as for the one submitted under Article 1 of Protocol No. 1: they maintained that the continuing refusal of the Government to allow them to return to the district of Lachin also violated their rights under Article 8 of the Convention. In this respect, they referred to Cyprus v. Turkey (cited above). Distinguishing their case from the situation in Loizidou (cited above), the applicants pointed out that, as opposed to Mrs Loizidou, they had all lived for many years in the Lachin area and had established homes and private and family lives there. There was allegedly no justification under Article 8 § 2 for the interference with their rights. 2. The Government 204. The Government ’ s submissions also essentially mirrored their arguments under Article 1 of Protocol No. 1. In addition, they maintained that, since the houses and the other property allegedly owned by the applicants had been destroyed in 1992, the applicants could not claim to have had any private or family life or a home in the area in question after that date. To support this assertion, the Government likened the applicants ’ situation to Loizidou ( (merits), cited above ) and referred to the Court ’ s finding in § 66 of the judgment: “[I]t would strain the meaning of the notion ‘ home ’ in Article 8 to extend it to comprise property on which it is planned to build a house for residential purposes. Nor can that term be interpreted to cover an area of a State where one has grown up and where the family has its roots but where one no longer lives.” In any event, the Government argued that the alleged interference was in accordance with the law and was necessary in a democratic society: by providing a “humanitarian corridor” linking the “NKR” with the outside world, control over the district of Lachin served the interests of national security, public safety and the economic well-being of the country. 3. The Azerbaijani Government, third-party intervener 205. The Azerbaijani Government supported the position of the applicants. B. The Court ’ s assessment 206. The notions of “private life”, “family life ” and “home” under Article 8 are, like “possessions” under Article 1 of Protocol No. 1, autonomous concepts; their protection does not depend on their classification under domestic law, but on the factual circumstances of the case. As noted above ( see paragraphs 137 and 150), all the applicants were born in the district of Lachin. Until their flight in May 1992 they had lived and worked there all, or for major parts, of their lives. Almost all of them married and had children in the district. Moreover, they earned their livelihood there and their ancestors had lived there. Furthermore, they had built and owned houses in which they lived. It is thus clear that the applicants had long-established lives and homes in the district, and that their situation contrasts with that of Mrs Loizidou in Loizidou (cited above). The applicants have not voluntarily taken up residence anywhere else, but live, out of necessity, as internally displaced persons in Baku and elsewhere. In the circumstances of the case, their forced displacement and involuntary absence from the district of Lachin cannot be considered to have broken their link to the district, notwithstanding the length of time that has passed since their flight. 207. For the same reasons as those presented under Article 1 of Protocol No. 1, the Court finds that the denial of access to the applicants ’ homes constitutes an unjustified interference with their right to respect for their private and family lives as well as their homes. 208. Accordingly, the Court concludes that there has been and continues to be a breach of the applicants ’ rights under Article 8 of the Convention and that Armenia is responsible for this breach. VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 209. The applicants claimed that no effective remedies had been available to them in respect of their complaints. They relied on Article 13, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties ’ submissions 1. The applicants 210. The applicants maintained that no remedy had been provided to persons displaced from the occupied territories. They asserted that, not being ethnic Armenians, it would have been entirely fruitless for them to seek redress from the authorities of Armenia or the “NKR”. In their view, no remedy existed which was available, in theory and in practice, for their complaints. The lack of domestic remedies became even more evident when regard was had to the fact that the issue of the right of return of internally displaced persons constituted one of the major disagreements between the parties to the ongoing peace process and, accordingly, remained unresolved. 2. The Government 211. The Government claimed that the applicants had had effective administrative and judicial remedies at their disposal, both in Armenia and the “NKR”, which did not differentiate between displaced persons and people of another status. As regards the remedies in the “NKR”, the Government referred to the Court ’ s conclusions in Cyprus v. Turkey (cited above, § 98) and maintained that the remedies of an internationally unrecognised entity should be exhausted unless their inexistence or ineffectiveness could be proved. The Government further referred to the arguments and the examples of cases presented in relation to the issue of exhaustion of the domestic remedies and asserted that the applicants had failed to make use of the available remedies and had not submitted any evidence that the remedies were inexistent or ineffective. 3. The Azerbaijani Government, third-party intervener 212. The Azerbaijani Government essentially agreed with the arguments submitted by the applicants. In addition, referring to Doğan and Others (cited above, § 106), they submitted that Armenia had not only failed to provide an effective remedy but had also failed to conduct an investigation to determine who was responsible for the refusal of access to property and homes. B. The Court ’ s assessment 213. The Court has already found violations of Article 1 of Protocol No. 1 and Article 8 of the Convention in regard to the continuing denial of access to the applicants ’ possessions and homes. Their complaints are therefore “arguable” for the purposes of Article 13 (see, for instance, Doğan and Others (cited above, § 163). 214. The present complaint comprises the same or similar elements as those already dealt with in the context of the objection concerning the exhaustion of domestic remedies. The Court reiterates its above finding that the Government have failed to discharge the burden of proving the availability to the applicants of a remedy capable of providing redress in respect of their Convention complaints and offering reasonable prospects of success (see paragraph 120 above). For the same reasons, the Court finds that there was no available effective remedy in respect of the denial of access to the applicants ’ possessions and homes in the district of Lachin. 215. Accordingly, the Court concludes that there has been and continues to be a breach of the applicants ’ rights under Article 13 of the Convention and that Armenia is responsible for this breach. VIII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 216. The applicants claimed that, in relation to the complaints set out above, they had been subjected to discrimination by the Government by virtue of ethnic and religious affiliation. They relied on Article 14, which provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties ’ submissions 1. The applicants 217. The applicants submitted that, if they had been ethnically Armenian and Christian rather than Azerbaijani Kurds and Muslim, they would not have been forcibly displaced from their homes by the Armenian-backed forces. They referred to the report by Mr David Atkinson and the Resolution of the Parliamentary Assembly, according to which “the military action, and the widespread ethnic hostilities which preceded it, led to large-scale ethnic expulsion and the creation of mono ‑ ethnic areas which resemble the terrible concept of ethnic cleansing” (see paragraph 64 above). Alternatively, the applicants submitted that they had been subjected to indirect discrimination by Armenia, since the actions taken by the Armenian military and the Armenian-backed Karabakh forces had disproportionately affected Azerbaijani Kurds, who were individuals belonging to an identifiable group. 2. The Government 218. The Government submitted that no issues arose under Article 14 of the Convention as there were no violations of the other Articles relied on by the applicants. In any event, the applicants had not been subjected to discriminatory treatment, because the military actions in Lachin had been aimed merely at opening a “humanitarian corridor” between Armenia and Nagorno-Karabakh and had not been directed against the residents of the district, whatever their ethnic or religious affiliation. Moreover, Kurds had never been subjected to discrimination in the Republic of Armenia or the “NKR” and the population of approximately 1,500 Kurds living in Armenia at present actively participated in social and political life and enjoyed all rights. 3. The Azerbaijani Government, third-party intervener 219. The Azerbaijani Government contended that the military actions in the “NKR” and the surrounding districts had had the aim of creating a mono-ethnic area. They further submitted that the applicants and other Azerbaijani internally displaced persons were still prevented from returning to their homes and possessions, while Armenians were being offered various incentives (including free housing, money, livestock and tax benefits) to settle in the territory, especially in Lachin. The third-party intervener also stated that the Azerbaijani Kurds are different from the Kurds living in Armenia in that the former are Muslims whereas the latter practise the Yazidi religion. B. The Court ’ s assessment 220. The Court ’ s findings of violations of Article 1 of Protocol No. 1 and Articles 8 and 13 of the Convention in the present case relate to a general situation which involves the flight of practically all Azerbaijani citizens, presumably most of them Muslims, from Nagorno-Karabakh and the surrounding territories, and their inability to return to these territories. The applicants ’ complaint under Article 14 of the Convention is thus intrinsically linked to the other complaints. Consequently, in view of the violations found under the other provisions, the Court considers that no separate issue arises under Article 14 (see, for instance, Cyprus v. Turkey, cited above, § 199; Xenides-Arestis v. Turkey, no. 46347/99, § 36, 22 December 2005; and Catan and Others, cited above, § 160). IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION 221. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 222. The applicants claimed pecuniary damage in amounts varying from 808,950 to 2,093,050 Azerbaijani (new) manats (AZN), totalling – for all six applicants – AZN 8,386,600. This amount corresponds to approximately 7,900,000 euros (EUR). In addition, they claimed EUR 50,000 each in non-pecuniary damage. Finally, the legal costs and expenses, as of 6 October 2013, ran to 41,703.37 pounds sterling. At the Court ’ s hearing on 22 January 2014, the applicants ’ representatives requested, however, that an expert be appointed to give an opinion on the evaluation of the damage incurred by the applicants. 223. The Government opposed all the applicants ’ claims. 224. The Court, having regard to the exceptional nature of the case, finds that the question of the application of Article 41 is not ready for decision. It must accordingly be reserved and the further procedure fixed. | In the applicants’ case, the Court confirmed that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories and thus had jurisdiction over the district of Lachin. It noted in particular that numerous reports and public statements, including from members and former members of the Armenian Government, demonstrated that Armenia, through its military presence and by providing military equipment and expertise, had been significantly involved in the Nagorno-Karabakh conflict from an early date. Armenia’s military support continued to be decisive for the control over the territories in question. Furthermore, it was evident from the facts established in the case that Armenia gave the “Nagorno-Karabakh Republic” (the “NKR”) substantial political and financial support; its citizens were moreover required to acquire Armenian passports to travel abroad, as the “NKR” was not recognised by any State or international organisation. In conclusion, Armenia and the “NKR” were highly integrated in virtually all important matters and the “NKR” and its administration survived by virtue of the military, political, financial and other support given to it by Armenia. Armenia thus exercised effective control over Nagorno-Karabakh and the surrounding territories. |
216 | Access to a lawyer | II. RELEVANT DOMESTIC LAW AND PRACTICE 49. Article 125 of the Criminal Code as it stood at the material time provided that : “Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity, or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.” 50. Article 168 of the Criminal Code provided: “Any person who, with the intention of committing the offences defined in sections 125, 131, 146, 147, 149 or 156, forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years ’ imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years ’ imprisonment.” 51. Article 516 of the Criminal Code provided: “ Any person who destroys, demolishes, spoils or damages property owned by another person shall, upon the complaint of the aggrieved person, be sentenced to not less than one and not more than three years ’ imprisonment ... ” According to paragraph 7 of this Article, if the offence in question was carried out using inflammable or explosive material and if the property in question was a motor vehicle, the sentence to be imposed varied between three and seven years. 52. At the material time Article 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of the State Security Courts, any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days. 53. Article 138 of the Code of Criminal Procedure as it stood at the material time stipulated that, from the time of their arrest, persons under the age of 18 should be given the assistance of an officially assigned legal representative without having to ask for it. According to Article 31 of the above-mentioned Law no. 3842, however, Article 138 was not applicable to persons accused of offences within the jurisdiction of the State Security Courts. 54. According to Article 6 § 1 of the Law on the Establishment, Duties and Procedures of Juvenile Courts (Law No. 2253 of 21 November 1979; repealed and replaced by Law No. 5395 of 15 July 2005 on the Protection of the Child), only juvenile courts had the power to try persons under the age of 15. According to the last paragraph of that Article, however, even children under the age of 15 charged with offences falling within the jurisdiction of State Security Courts were to be tried before those courts rather than before juvenile courts. 55. Article 37 of Law No. 2253 also stipulated that minors could only be detained on remand in prisons specially designed for them. In places where no such prisons existed, minors were to be kept in a part of a normal prison separate from where adults were detained. For the purposes of this Law the term “ minor ” means persons who were under 15 years of age at the time when the offence was committed. 56. Article 107 (b) of the Regulations on Prison Administration and Execution of Sentences (dated 5 July 1967) stipulated that detainees under the age of 18 were to be kept separately from other detainees. Under Article 106 of the same Regulations, detainees had the possibility to “inform prison governors, prosecutors and the Ministry of Justice of their complaints and requests”. 57. Pursuant to the Law on the Protection of the Child, which on 15 July 2005 replaced the above-mentioned Law on the Establishment, Duties and Procedures of Juvenile Courts, persons under the age of 18 can only be tried before juvenile courts. However, if the prosecuting authorities allege that the offence with which the juvenile is charged was committed jointly with adults, the juvenile may be tried before the ordinary criminal courts together with those adults. III. RELEVANT INTERNATIONAL TEXTS 58. The United Nations Convention on the Rights of the Child 1989 (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. Article 1 of the UN Convention states: “ For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. ” Article 3( i ) states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37(a) and (b) provides: “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age. (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child ’ s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. ” Article 40 provides as relevant: “1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child ’ s sense of dignity and worth, which reinforces the child ’ s respect for the human rights and fundamental freedoms of others and which takes into account the child ’ s age and the desirability of promoting the reintegration and the child ’ s assuming a constructive role in society. 2. To this end ... the States Parties shall, in particular, ensure that: ... (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: ... (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence; (iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; (iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality; ... (vii.) To have his or her privacy fully respected at all stages of the proceedings. ... ” 59. The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey (09/07/2001(CRC/C/15/Add.152.)) provides as follows: “65. ... The fact that detention is not used as a measure of last resort and that cases have been reported of children being held incommunicado for long periods is noted with deep concern. The Committee is also concerned that there are only a small number of juvenile courts and none of them are based in the eastern part of the country. Concern is also expressed at the long periods of pre-trial detention and the poor conditions of imprisonment and at the fact that insufficient education, rehabilitation and reintegration programmes are provided during the detention period. 66. The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.” 60. The recommendation of the Committee of Ministers to Member States of the Council of Europe on social reactions to juvenile delinquency (no. R ( 87 )2 0), adopted on 17 September 1987 at the 410 th meeting of the Ministers ’ Deputies, insofar as relevant, reads as follows: “Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ... 7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...” 61. Article 17 of the European Social Charter 1961 regulates the right of mothers and children to social and economic protection. In that context, the European Committee of Social Rights noted in its Conclusions XVII-2 (2005, Turkey ) that the length of pre-trial detention of young offenders was long and the conditions of imprisonment poor. 62. In the report pertaining to its visits carried out in Turkey between 5 and 17 October 1997, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) expressed its serious misgivings “ as regards the policy of having juveniles (i.e. 11 to 18 year olds) who are remanded in custody placed in adult prisons ” (CPT/ Inf ( 99) 2 EN, publication date: 23 February 1999 ). 63. In its report prepared in respect of its visits conducted in Turkey between 16 and 29 March 2004 (CPT/ Inf (2005) 18), the CPT stated the following: “[ i ] n the reports on its visits in 1997 and September 2001, the CPT has made clear its serious misgivings concerning the policy of having juveniles who are remanded in custody placed in prisons for adults. A combination of mediocre material conditions and an impoverished regime has all too often created an overall environment which is totally unsuitable for this category of inmate. The facts found in the course of the March 2004 visit have only strengthened those misgivings. Here again, the laudable provisions of the Ministry of Justice circular of 3 November 1997 (“the physical conditions of the prison sections allocated to juvenile offenders shall be revised and improved to conform with child psychology and enable practising educative programmes, aptitude intensive games and sports activities”) have apparently had little practical impact. ” 64. According to UNICEF, the juvenile justice system is still in its infancy in Turkey in 2008. Judges were learning about child-sensitive detention centres, alternative dispute resolution and due process for children in conflict with the law. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 65. Relying on Article 3 of the Convention the applicant complained that his trial before the Istanbul State Security Court, coupled with his detention together with adults, had caused him mental suffering. Article 3 of the Convention provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 66. The Government contested that argument. A. Admissibility 67. Referring to the Regulations on Prison Administration and Execution of Sentences (see paragraph 56 above), the Government maintained that the applicant had failed to exhaust domestic remedies because neither he nor his lawyer had lodged a complaint under Article 106 of the Regulations to complain about the applicant ’ s detention with adults. The Government also pointed out that it would have been possible for the applicant to bring his complaints to the attention of the trial court or the Court of Cassation. 68. The applicant responded that, in view of the unambiguous wording of the domestic regulations and relevant international conventions, the authorities had been under an obligation to keep him separately from adult detainees. Since the applicable domestic legislation clearly anticipated the potential dangers to the well-being of a child of the age he had been at the time, it was not justifiable for the Government to argue that the judges and the prison authorities had been ignorant of those dangers when detaining him in an adult prison. 69. The Court recalls that, according to its established case-law, the purpose of the domestic remedies rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, inter alia, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, § 27, and Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 38). 70. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, § 52 ). 71. The Court further notes that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see the Akdıvar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, § 69). 72. The Court notes that the applicant was arrested on 30 September 1995 and detained in police custody for a period of twelve days during which, pursuant to domestic legislation in force at the time, he did not have access to a lawyer or to any member of his family (see paragraph 53 in fine above). At the end of that police custody on 12 October 1995 he was questioned by a prosecutor and a judge, again in the absence of a lawyer. The same day the judge ordered his detention in prison. In these circumstances, the Court considers it unrealistic to expect a fifteen - year - old person, who had just been released from twelve days of incommunicado police custody, to refer to the Regulations on Prison Administration and Execution of Sentences and ask to be detained separately from adult prisoners. 73. Furthermore, the Court observes that, when ordering the applicant ’ s detention in prison, the judge had in his possession information showing the applicant ’ s date of birth. It appears, therefore, that although the judge was aware that the applicant was only fifteen years of age, he acted in complete disregard of the applicable procedure by ordering the applicant ’ s detention in an adult prison. 74. The first time the applicant was represented by a lawyer was during the third hearing, which was held on 18 April 1996, that is, some six months after his detention in prison had been ordered (see paragraph 18 above). In the course of those six months the trial court did not only allow the applicant to be unrepresented by a lawyer, but also on two occasions ordered his continued detention in the prison (see paragraphs 15-17 above). 75. The lawyer who represented the applicant between 18 April 1996 and 10 October 2000, for her part, manifestly failed to defend the applicant adequately. As well as not attending 17 of the 25 hearings, she also failed to inform the trial court of the psychological problems faced by the applicant in the prison or his three attempts to kill himself. 76. In the end, it was the applicant ’ s fellow inmates who became aware of that lawyer ’ s failure to represent the applicant adequately and took the initiative to inform the trial court about the medical problems faced by the applicant (see paragraph 32 above). 77. The existence of the applicant ’ s problems was confirmed by the prison doctor in his report of 7 August 2000. In that report the doctor informed the trial court that the applicant had set himself on fire, slashed his wrists and taken an overdose and that he had been in and out of hospital on a number of occasions. The doctor also informed the trial court that the situation in the prison was unsatisfactory for the applicant ’ s treatment; he needed to spend a considerable time in a specialised hospital (see paragraph 38 above). 78. Even after having been informed about the applicant ’ s medical problems and the unsuitability of the prison for their treatment, the trial court ordered the applicant ’ s continued detention in prison. 79. In the present case the Government have not submitted any documents or other evidence showing that the remedy referred to by them was effective for the purposes of Article 35 § 1 of the Convention. Having regard to the widespread practice of detaining minors in adult prisons in Turkey as highlighted in the reports of certain international organisations (see paragraphs 59-64 above), the Court has doubts about the effectiveness of that remedy. 80. In any event, the Court considers that the special circumstances described above absolved the applicant from the requirement to exhaust domestic remedies in respect of his complaints under Article 3 of the Convention. Consequently, this complaint cannot be rejected for non-exhaustion of domestic remedies. 81. The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and finds no other ground to declare it inadmissible. It must therefore be declared admissible. B. Merits 82. Referring to the Court ’ s case-law under Article 3 of the Convention, the applicant submitted that the Contracting Parties were under an obligation to take measures to ensure that individuals within their jurisdiction were not subjected to ill-treatment. Such measures should provide effective protection particularly in respect of children and other vulnerable persons and they should include the taking of reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge. 83. In his case the respondent State had failed, notwithstanding its obligations both under its own domestic legislation and under international conventions to which it was a party, to provide effective protection against the severity of the applicant ’ s arbitrary detention in an adult prison where he was kept with adults for a period of over five years. Furthermore, for the first eighteen months of that period he had been tried for an offence carrying the death penalty. As he was being tried for an offence falling within the jurisdiction of the State Security Courts, he had been subjected to a severely limited visiting regime in the prison. He had not, for example, had the opportunity to have open visits with his family. The conditions of his detention had adversely affected his mental health and had led him to attempt suicide. 84. He complained that the above - mentioned problems, coupled with his trial before the Istanbul State Security Court, had caused him psychological suffering amounting to inhuman and degrading treatment. 85. The applicant further complained that during his time in prison he had not been provided with adequate medical care, notwithstanding the seriousness of his health problems. In his opinion, the failure to release him, at least temporarily, to enable him to obtain adequate medical care had also amounted to inhuman treatment contrary to Article 3 of the Convention. 86. In support of his complaints the applicant referred to the CPT reports ( see paragraphs 62-63 above ) in which the CPT expressed its misgivings as regards the policy of detaining juveniles in adult prisons in Turkey. 87. The Government did not dispute that the applicant had been kept in prison together with adults. Referring to the medical report of 25 April 2001 (see paragraph 43 above), they maintained that the applicant had not suffered any mental problems which would have exempted him from being criminally liable for his actions. They also argued that the ill-treatment allegedly suffered by the applicant had not attained the minimum level of severity falling within the scope of Article 3 of the Convention. 88. The Court observes at the outset that the applicant ’ s detention in an adult prison was in contravention of the applicable Regulations which were in force at the time (see paragraph 56 above) and which reflected Turkey ’ s obligations under International Treaties (see paragraph 58 above). 89. It further observes that, according to the medical report drawn up on 25 April 2001 (see paragraph 43 above), the applicant ’ s psychological problems had begun during his detention in the prison and worsened in the course of his five-year detention there. The medical reports of 24 July 2000 and 7 August 2000 also detailed the serious medical problems from which the applicant was suffering in the prison. The Court considers that the fact that the applicant was found to be fit for trial and his psychological problems to be in remission some six months after his release from the prison does not alter the seriousness of the medical problems he experienced whilst detained. 90. As pointed out by the Government, ill-treatment must attain the minimum level of severity for it to fall within the scope of Article 3 of the Convention (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, § 162). The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Tekin v. Turkey, judgment of 9 June 1998, Reports 1998-IV, § 52). 91. In the present case, the Court disagrees with the Government ’ s submissions that the applicant ’ s problems did not reach the minimum level of severity to fall within the scope of Article 3 of the Convention. The applicant was only fifteen years old when he was detained in a prison where he spent the next five years of his life together with adult prisoners. For the first six and a half months of that period he had no access to legal advice. Indeed, as detailed above (see paragraphs 74 and 75 above), he did not have adequate legal representation until some five years after he was first detained in prison. These circumstances, coupled with the fact that for a period of eighteen months he was tried for an offence carrying the death penalty, must have created complete uncertainty for the applicant as to his fate. 92. The Court considers that the above-mentioned features of his detention undoubtedly caused the applicant ’ s psychological problems which, in turn, tragically led to his repeated attempts to take his own life. 93. The Court further considers that the national authorities were not only directly responsible for the applicant ’ s problems, but also manifestly failed to provide adequate medical care for him. There are no documents in the file to indicate that the trial court was informed about the applicant ’ s problems and his suicide attempts until the summer of 2000 (see paragraphs 32 and 36 above). Nor are there any documents in the file to show that the trial court showed any concern for the applicant when he repeatedly failed to turn up for the hearings. In fact, the first time the trial court was informed about the applicant ’ s problems was not by any official responsible for prisoners – such as a prison governor or a prison doctor – all of whom were aware of these problems, but by the applicant ’ s cell-mates (see paragraph 32 above). It was those cell-mates who also forwarded the prison doctor ’ s medical report to the trial court (see paragraph 33 above). 94. According to that report, the prison was not an adequate place for the applicant ’ s treatment; he needed to spend a considerable time in a specialist hospital (see paragraph 38 above). The Court notes with regret that that information provided by the prison doctor did not spur the trial court into action to ensure adequate medical care for the applicant. The only step taken by the trial court was to refer the applicant to a hospital – not for treatment for his medical problems but for a medical examination with a view to establishing whether he had had the necessary criminal capacity ( doli capax ) when he allegedly committed the offence with which he had been charged (see paragraph 35 above). 95. Indeed, as pointed out by the applicant, the trial court not only failed to ensure that he received medical care, but even prevented him and his family from doing so by refusing to release him on bail for an additional period of two and a half months (see paragraphs 35 and 41 above). 96. At this juncture the Court reiterates that, although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Mouisel v. France, no. 67263/01, § 40, ECHR 2002 ‑ IX and the cases cited therein). As set out above, the authorities did not acquit themselves of that obligation. 97. It must also be noted that no action appears to have been taken, notwithstanding the applicant ’ s psychological problems and his first suicide attempt, to prevent him from making any further such attempts (see, in this connection, Keenan v. the United Kingdom, no. 27229/95, § § 112-116, ECHR 2001 ‑ III ). 98. Having regard to the applicant ’ s age, the length of his detention in prison together with adults, the failure of the authorities to provide adequate medical care for his psychological problems, and, finally, the failure to take steps with a view to preventing his repeated attempts to commit suicide, the Court entertains no doubts that the applicant was subjected to inhuman and degrading treatment. There has accordingly been a violation of Article 3 of the Convention. 99. The Court considers it unnecessary to examine separately the complaint that the applicant ’ s trial by a State Security Court had also amounted to ill-treatment within the meaning of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLES 5 § 3 AND 13 OF THE CONVENTION 100. The applicant complained under Article 5 § 3 of the Convention that the length of his detention on remand was excessive. He further contended under Article 13 of the Convention that there were no remedies in domestic law to challenge the length of his detention on remand. The Court considers that the complaint formulated under Article 13 of the Convention should be examined solely from the standpoint of Article 5 § 4 of the Convention. Article 5 § 3 and 4 provide as follows: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 101. The Government contested these arguments and maintained that the applicant had been detained as a remand prisoner between 30 September 1995 and 17 October 1997. After that latter date he had been serving his prison sentence and was therefore no longer on remand. 102. The Court observes that the applicant ’ s detention, for the purposes of Article 5 § 3 of the Convention, began when he was arrested on 30 September 1995 and continued until he was convicted by the trial court on 17 October 1997. From 17 October 1997 until his conviction was quashed by the Court of Cassation on 12 March 1998, he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 ( see Solmaz v. Turkey, no. 27561/02, § 34, ECHR 2007 ‑ II (extracts) and the cases cited therein ). From 12 March 1998 until his release on bail on 10 October 2000, however, the applicant was once more in pre-trial detention for the purposes of Article 5 § 3 of the Convention. It follows that the applicant spent a total of four years, seven months and fifteen days as a remand prisoner. A. Admissibility 103. The Government argued that the applicant could not claim to be a victim of a violation of Article 5 § 3 of the Convention because the time spent by him on remand was subsequently deducted from the sentence imposed on him by the trial court on 22 May 2001 (see paragraph 44 above). 104. The Court has already examined similar submissions made by the respondent Government in other cases (see, for example, Arı and Şen v. Turkey, no. 33746/02, § 19, 2 October 2007 and the cases cited therein) and concluded that the deduction of the time spent in prison as a remand prisoner from the later sentence could not eliminate a violation of Article 5 § 3. In the present case the Government have not submitted any arguments which could lead the Court to reach a different conclusion. Accordingly, the Government ’ s objection to the applicant ’ s victim status must be rejected. 105. The Court considers that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 5 § 3 of the Convention 106. The Government argued that there had been a genuine requirement of public interest for the continued detention of the applicant, who had been charged with a serious offence. There had also been a high risk of him escaping or destroying the evidence against him. 107. The applicant maintained his allegations. 108. The Court observes that the Government, beyond arguing that the applicant ’ s detention was justified on account of the offence with which he was charged, did not argue that alternative methods had been considered first and that his detention had been used only as a measure of last resort, in compliance with their obligations under both domestic law and a number of international conventions (cf. for example Nart v. Turkey, no. 20817/04, § 22, 6 May 2008). Nor are there any documents in the file to suggest that the trial court, which ordered the applicant ’ s continued detention on many occasions, at any time displayed concern about the length of the applicant ’ s detention. Indeed, the lack of any such concern by the national authorities in Turkey as regards the detention of minors is evident in the reports of the international organisations cited above (paragraphs 61-64). 109. In at least three judgments concerning Turkey, the Court has expressed its misgivings about the practice of detaining children in pre-trial detention (see Selçuk v. Turkey, no. 21768/02, § 35, 10 January 2006; Koşti and Others v. Turkey, no. 74321/01, § 30, 3 May 2007; and Nart v. Turkey, cited above, § 34) and found violations of Article 5 § 3 of the Convention for considerably shorter periods than that spent by the applicant in the present case. For example, in Selçuk the applicant had spent some four months in pre-trial detention when he was sixteen years old and in Nart the applicant had spent forty - eight days in detention when he was seventeen years old. In the present case, the applicant was detained from the age of fifteen and was kept in pre-trial detention for a period in excess of four and a half years. 110. In the light of the foregoing, the Court considers that the length of the applicant ’ s detention on remand was excessive and in violation of Article 5 § 3 of the Convention. 2. Article 5 § 4 of the Convention 111. The Government submitted that the applicant did in fact have the possibility of challenging his pre-trial detention by lodging objections pursuant to Articles 297-304 of the Code of Criminal Procedure ( compare Bağrıyanık v. Turkey, no. 43256/04, § 19, 5 June 2007 ). 112. The Court has already examined the possibility of challenging the lawfulness of pre-trial detention in Turkey at the relevant time and concluded that it offered little prospect of success in practice and that it did not provide for a procedure that was genuinely adversarial for the accused (see Koşti, cited above, § 22; Bağrıyanık, cited above, §§ 50-51; and Doğan Yalçın v. Turkey, no. 15041/03, § 43, 19 February 2008 ). The Court finds no particular circumstances in the instant case which would require it to depart from its previous findings. 113. In the light of the foregoing the Court concludes that there has been a breach of Article 5 § 4 of the Convention. III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 114. Under Article 6 § 1 of the Convention, the applicant alleged that - he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of the military judge on the bench of the Istanbul State Security Court which had tried and convicted him; - the criminal proceedings against him had not been concluded within a reasonable time; - the principle of equality of arms had been violated on account of his inability to respond to the public prosecutor ’ s submissions since he had been a minor, suffering from psychological problems; - the written observations of the principal public prosecutor at the Court of Cassation had not been served on him; and that - the judgment of the Istanbul State Security Court had been arbitrary and lacked reasoning. 115. The applicant also alleged a violation of Article 6 § 2 of the Convention because the bill of indictment drafted by the public prosecutor at the Istanbul State Security Court had been based on a report prepared by the security forces. He further maintained under the same head that the excessive length of his detention on remand had violated his right to the presumption of innocence. 116. The applicant complained under Article 6 § 3 of the Convention that he had not been informed of the charges against him and that he had been deprived of his right to have adequate time and facilities for the preparation of his defence. Although he had been unable to defend himself, he had not been appointed a lawyer. The relevant parts of Article 6 of the Convention provide as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” 117. The Government contested the applicant ’ s arguments and maintained that his trial had been fair. A. Admissibility 118. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 119. The applicant submitted that at the time of his arrest he had only been 15 years of age, and that he had been kept in police custody for a period of 13 days and questioned there without the assistance of a lawyer. He had subsequently been tried for an offence carrying the death penalty and his mental stability had deteriorated over time. He had not been able to attend a large number of the hearings because of injuries resulting from his suicide attempts and because of his psychological problems. He had not had the assistance of a lawyer or a psychologist to cope with such an onerous trial and he had not had the opportunity to examine the case or adduce evidence in his favour. 120. In respect of the above, and referring to the judgments in the cases of T. v. the United Kingdom [GC] ( no. 24724/94, 16 December 1999 ) and V. v. the United Kingdom [GC] ( no. 24888/94, ECHR 1999 ‑ IX ), the applicant complained that he had been deprived of the opportunity to participate effectively in his trial. 121. The Government submitted that the police had reminded the applicant of the charges against him and his rights. Furthermore, he had benefited from the assistance of a legal representative right from the beginning of the proceedings. 122. The Court observes that in a number of applications against Turkey involving a complaint of an alleged lack of independence and impartiality on the part of State Security Courts, the Court has limited its examination to that aspect alone, not deeming it necessary to address any other complaints relating to the fairness of the impugned proceedings ( see, inter alia, Ergin v. Turkey (No. 6), no. 47533/99, § 55, 4 May 2006 ). However, the Court deems it necessary to put this well - rehearsed approach aside in the instant case because the particularly grave circumstances of the application present more compelling issues involving the effective participation of a minor in his trial and the right to legal assistance. 123. The Court reiterates that the right of an accused under Article 6 of the Convention to participate effectively in his or her criminal trial generally includes not only the right to be present, but also to hear and follow the proceedings. Such rights are implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained, in particular, in sub-paragraph (c) of paragraph 3 of Article 6 – “to defend himself in person”. 124. “Effective participation” in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed (see, most recently, Timergaliyev v. Russia, no. 4 0631/02, § 51, 14 October 2008, and the cases cited therein ). It also requires that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to defence counsel his or her version of events, point out any statements with which he or she disagrees and make the trial court aware of any facts which should be put forward for the defence (see Stanford v. the United Kingdom, judgment of 23 February 1994, Series A no. 282-A, § 30). 125. The applicant in the present case was arrested on 30 September 1995 and subsequently charged with an offence for which the only punishment foreseen was the death penalty. Despite his very young age, the legislation applicable at the time prevented the applicant from having his trial conducted before a juvenile court (see paragraph 54 above) and from having a lawyer appointed for him by the State (see paragraph 53 above). 126. He was not represented by a lawyer until 18 April 19 96, that is some six and a half months after he was arrested. While he remained unrepresented he was questioned by the police, a prosecutor and a duty judge, indicted, and then questioned by the trial court (see paragraphs 7, 11 ‑ 13 and 16- 17; see also Salduz v. Turkey [GC], no. 36391/02, §§ 50-63, 27 November 2008 concerning the absence of legal representation for a minor in police custody). 127. Fourteen hearings were held in the course of the first trial and 16 in the retrial. The applicant did not attend at least 14 of those hearings. He claimed that his failure to attend had been due to his health problems. This claim, which is supported by medical evidence (see paragraphs 32, 33 and 36 ‑ 38 above ), was not disputed by the Government. Furthermore, as pointed out above, the trial court did not entertain any concerns about the applicant ’ s absences from the hearings or take steps to ensure his attendance. 128. In these circumstances the Court cannot consider that the applicant was able to participate effectively in the trial. Furthermore, for the reasons set out below, the Court does not consider that the applicant ’ s inability to participate in his trial was compensated by the fact that he was represented by a lawyer from 18 April 1996 onwards ( contrast Stanford, cited above, § 3 0). 129. The lawyer, who declared during the third hearing, held on 18 April 1996, that she would be representing the applicant from then on, failed to attend 17 of the 25 hearings. In fact, in the course of the retrial this particular lawyer attended only one of the hearings, held on 18 March 1999. During the crucial final stages of the retrial from 18 March 1999 until he was represented by Ms Avcı on 10 October 2002 (see paragraph 39 above) the applicant was completely without any legal assistance. 130. At this juncture the Court reiterates its established case-law according to which the State cannot normally be held responsible for the actions or decisions of an accused person ’ s lawyer (see Stanford, cited above, § 28) because the conduct of the defence is essentially a matter between the defendant and his counsel, whether appointed under a legal-aid scheme or privately financed (see Czekalla v. Portugal, no. 38830/97, § 60, ECHR 2002 ‑ VIII; see also Bogumil v. Portugal, no. 35228/03, § 46, 7 October 2008 ). Nevertheless, in case of a manifest failure by counsel appointed under the legal aid scheme to provide effective representation, Article 6 § 3 (c) of the Convention requires the national authorities to intervene ( ibid ). 131. In the present case the lawyer representing the applicant was not appointed under the legal aid scheme. Nevertheless, the Court considers that the applicant ’ s young age, the seriousness of the offences with which he was charged, the seemingly contradictory allegations levelled against him by the police and a prosecution witness (see paragraphs 8, 18, 28 and 29 above), the manifest failure of his lawyer to represent him properly and, finally, his many absences from the hearings, should have led the trial court to consider that the applicant urgently required adequate legal representation. Indeed, an accused is entitled to have a lawyer assigned by the court of its own motion “when the interests of justice so require” (see Vaudelle v. France, no. 35683/97, § 59, ECHR 2001-I). 132. The Court has had regard to the entirety of the criminal proceedings against the applicant. It considers that the shortcomings highlighted above, including in particular the de facto lack of legal assistance for most of the proceedings, exacerbated the consequences of the applicant ’ s inability to participate effectively in his trial and infringed his right to due process. 133. There has, therefore, been a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c). IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 134. The applicant complained that he had not had an effective remedy, within the meaning of Article 13 of the Convention, in respect of his complaints under Article 6 of the Convention. Finally, relying on Article 14 of the Convention the applicant alleged that he had been discriminated against because he had been tried by a State Security Court instead of a juvenile court. 135. The Court considers that these complaints may be declared admissible. However, having regard to the violations found above the Court deems it unnecessary to examine these complaints separately on the merits. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 136. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 137. The applicant submitted that, at the time of his arrest, he had been working and earning approximately 200 euros (EUR) per month. As a result of his arrest and detention he had been unable to work for a period of five years and one month. Thus, his lost earnings, together with interest, had amounted to EUR 32,000. He claimed that this amount should be awarded to him in respect of pecuniary damage. 138. The applicant also claimed EUR 103,000 in respect of non-pecuniary damage. 139. The Government contested the claims. 140. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, having regard to the particularly grave circumstances of the present case and the nature of the multiple violations found, it awards the applicant EUR 4 5 ,000 in respect of non-pecuniary damage. B. Costs and expenses 141. The applicant also claimed 6,050 Turkish liras (approximately EUR 3,735 at the time of the submission of the claim in 2006) for the costs and expenses incurred before the domestic courts, and 79,670 Turkish liras (EUR 49,200) for those incurred before the Court. In support of his claim the applicant submitted a schedule of costs, showing the hours spent by his two lawyers on the case. 142. The Government considered the sums to be excessive and unsupported by adequate documentation. 143. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000, less EUR 850 received by way of legal aid from the Council of Europe - a total of EUR 4, 150 - covering costs under all heads, C. Default interest 144. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention. It considered in particular that the applicant had not been able to effectively participate in the trial, given that he had not attended at least 14 of the 30 hearings both during the initial trial and at retrial. Having considered the entirety of the criminal proceedings against the applicant, and their shortcomings, in particular the lack of legal assistance for most of the proceedings, the Court concluded that there had been a violation of his defence rights. |
933 | Concurrent judicial functions in the same case | II. RELEVANT DOMESTIC LAW AND PRACTICE 19. Law no. 85-98 of 25 January 1985 on the judicial reorganisation and liquidation of undertakings and its implementing Decree no. 85-1388 of 27 December 1985 [2] Purpose of judicial reorganisation and liquidation proceedings Section 1 – “This Act institutes a new procedure of judicial reorganisation proceedings with the aim of preserving undertakings, maintaining their activities and employment and clearing their debts.” Judicial reorganisation shall take place in accordance with a plan approved in a judicial decision at the end of an observation period. The plan shall provide for the continuation or the sale of the activity of the undertaking. When neither alternative appears possible, the undertaking shall be put into compulsory liquidation.” Section 8 – “When an order for judicial reorganisation is made an observation period shall commence so that a report can be prepared on the company's finances and labour force and proposals made for the continuation or sale of the undertaking. If neither alternative appears possible, the court shall make an order for compulsory liquidation.” Section 10 – “In the insolvency order the court shall designate the insolvency judge [from a list compiled by the president of judges with at least two years' experience] and two court officers, namely the administrator and the creditors' representative. It shall invite the works council or, if none, the staff delegates or, if none, the members of staff to appoint a staff representative from the undertaking ...” Functions of the insolvency judge during the observation period Section 14 – “The insolvency judge shall be responsible for ensuring that the case proceeds expeditiously and that all relevant interests are protected.” Section 20 – “The administrator shall receive from the insolvency judge all information and documents that are relevant to the performance of his or her and the experts' duties.” Powers of the insolvency judge during the observation period Power to supervise the company's situation Section 13 – “The administrator and the creditors' representative shall keep the insolvency judge and State Counsel's Office informed of the progress of proceedings. The insolvency judge and State Counsel's Office may at any time require communication of any pleading or document related to the procedure. Notwithstanding any statutory provision to the contrary, State Counsel's Office shall communicate to the insolvency judge at the latter's request or on its own initiative all information he holds that may be of relevance to the proceedings.” Section 19 – “Notwithstanding any statutory or regulatory provision to the contrary, the insolvency judge may procure communication to him by the auditors, staff members and representatives, public authorities and bodies, pension and social-security funds, lending institutions and the departments responsible for centralising banking risks and defaults in payment information apt to give him precise details of the undertaking's economic and financial circumstances.” Section 29 – “During the observation period the insolvency judge may order that letters addressed to the debtor shall be remitted to the administrator ...” Power to intervene in the management of the undertaking Article 25 of the decree – “The insolvency judge shall make an order when deciding applications, challenges and claims within his jurisdiction or grievances concerning acts of the administrator, the creditors' representative, the commissioner responsible for the execution of the plan, the liquidator or the staff representative. Should the insolvency judge fail to make an order within a reasonable time, the court may hear the case on its own initiative or at the request of a party. Orders of the insolvency judge shall be lodged with the registry forthwith and communicated to the court officers. An appeal shall lie against them [to the court]. The court may on its own initiative quash or vary an order within the same period.” Section 27 – “The insolvency judge may order an inventory of the assets of the undertaking and the affixation of seals.” Article 28 of the decree – “The insolvency judge shall give authority to the administrator or the debtor to pay over to the creditors' representative the sums which the latter requires to discharge his obligations.” Section 30 – “The insolvency judge shall fix the remuneration for the duties performed by the head of the undertaking or the company management ...” Section 33 – “The judgment setting the proceedings in motion shall automatically entail a ban on the payment of any debts that arose before the insolvency judgment. The insolvency judge may authorise the head of the undertaking or the administrator to dispose of property other than in the ordinary course of the business of the undertaking, to grant a mortgage or a pledge, or to compromise or settle. The insolvency judge may also authorise such persons to pay debts that arose before the judgment or to release a lien or property that is the subject of a valid retention of title clause provided such release is justified in that it permits the company to continue to trade. Any document entered into or payment made in breach of the provisions of this section shall be set aside on application by any interested party lodged within three years from the execution of the document or payment of the debt. For registrable documents, time shall start to run from the date of registration.” Section 34 – “In the absence of agreement, the insolvency judge shall decide by order whether proposals by the debtor or administrator to the creditors for substituting security with equivalent security shall be implemented.” Section 39 in fine – “The insolvency judge may authorise the debtor or, as the case may be, the administrator, to sell movable assets in rented property that is liable to deteriorate rapidly or depreciate imminently, whose upkeep would be costly or realisation will not jeopardise the existence of the business or the preservation of sufficient security for the landlord.” Section 45 – “Where during the period of observation redundancies are urgent, inevitable and essential, the insolvency judge may authorise the administrator to effect the dismissals ...” Section 53 – “Creditors failing to lodge a proof within the periods laid down by decree of the Conseil d'Etat shall not be entitled to any share or dividend unless the insolvency judge grants them an extension of time after they have satisfied him that they were not responsible for the failure ...” Decision-making power Section 101 – “In the light of proposals by the creditors' representative, the insolvency judge shall decide to accept or reject proofs or shall note that proceedings are under way or that the dispute is not within his jurisdiction ...” Section 156 – “The insolvency judge shall order the sale by auction or by private agreement of the remaining property belonging to the undertaking ...” Section 173 – “No application to set aside, whether by the other party to a contract or a third party, and no ordinary appeal or appeal on points of law shall lie against: ... 2. Judgments delivered by the Commercial Court on appeal against an order of the insolvency judge ...” Sundry prerogatives Section 12 – “The court may, on its own initiative, on a proposal by the insolvency judge or at the request of State Counsel's Office, replace the administrator, an expert or the creditors' representative ...” Section 15 – “Either one or two supervisors chosen from among the creditors may be appointed by order of the insolvency judge ...” Court's decision on the plan for the continuation or sale of the undertaking Judgment deciding on the plan Section 61 – “After hearing the debtor, the administrator, the creditors' representative and the representatives of the works council or, if none, the staff delegates or duly summonsing them to appear, the court shall deliver its judgment in the light of the administrator's plan and shall order either reorganisation or liquidation ...” Section 36 is contained in the part of the Act relating to the pursuit of the undertaking's activity. The Act provides that the activity of the undertaking shall continue during the observation period subject to the provisions of Section 36, which reads as follows: “At any stage, the court may, at the request of the administrator, the creditor's representative, the debtor, State Counsel's Office or on its own initiative and in the light of the insolvency judge's report, order the cessation of all or part of the activity or compulsory liquidation.” The court shall deliver its judgment in private after hearing the debtor, the administrator, the creditors' representative and the representatives of the works council or, if none, the staff delegates or after duly summonsing them to appear.” 20. Judgment of 11 September 1997 of the Grenoble Court of Appeal, Hapian v. Hidoux, Recueil Dalloz 1998, J. 128 The Court of Appeal said: “The insolvency judge has the role of supervising the administration and compulsory liquidation while also exercising an investigative role; his presence in the trial Chamber is an exception to the principle that the investigation and trial stages should be kept separate.” The facts, however, were concerned with another aspect of the procedure, namely the making of a personal bankruptcy order against the manager of a company that had been put into liquidation. The same judge had sat as president and insolvency judge in two sets of proceedings in which first the company's judicial reorganisation and then its compulsory liquidation had been ordered. He had subsequently served a summons on the manager of the company to appear before the commercial court (the summons contained a recommendation that the manager should be declared personally bankrupt) and presided over that court, which made an order declaring the manager personally bankrupt. The Court of Appeal quashed the judgment of the commercial court on the ground that there had been a violation of Article 6 § 1 of the Convention. It found that the fact that the insolvency judge had sat on the bench that heard the case was inconsistent with the principle that the investigation and trial stages should be kept separate and could legitimise the appellant's concerns regarding the objective impartiality of the court that had delivered the impugned decision ( Recueil Dalloz 1998, jurisprudence, pp. 128 et seq.). The Court of Appeal relied essentially on the role of appearances and expressly followed the judgments in Delcourt v. Belgium of 17 January 1970, Series A no. 11, p. 17, § 31, and De Cubber v. Belgium of 26 October 1984, Series A no. 86, p. 14, § 26. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. With regard to the proceedings before the Commercial Court the applicant alleged a violation of Article 6 § 1 of the Convention in so far as it guaranteed the right to a fair hearing by an impartial tribunal. The Government contested that argument. 22. Article 6 § 1 provides, inter alia : “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” A. Alleged unfairness of the proceedings before the Commercial Court 1. Arguments of the parties 23. In his written observations, the applicant noted that in its judgment the Commercial Court had included the insolvency judge's report in the list of documents it had seen. He concluded that the report in question, which section 36 of the Law of 25 January 1985 made mandatory, was in written form, as otherwise the Commercial Court would have used the term “heard”. The Court of Cassation had not established that the report did not exist. The applicant also referred to the order dated 15 March 1993 of the President of the Nanterre Commercial Court, who was familiar with the procedure in that court and could not have confused the report which the insolvency judge had submitted at the hearing with the remarks he had exchanged with his colleagues at that hearing. The applicant therefore maintained that the insolvency judge had in the instant case submitted a written report to the Commercial Court. He complained that the document which had been lodged with the judges had not been communicated to the parties, in breach of the right to adversarial proceedings in accordance with the principle of equality of arms. Adversarial proceedings implied that a court should not base its decision on evidence that had not been made available to each of the parties and equality of arms required each party to be afforded an opportunity to present his case under conditions that guaranteed a balance between the parties to the cause (see, among other authorities, the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 33, and the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 22, § 56). In his pleadings at the hearing, the applicant's lawyer said that since a recovery plan had been put before the court, section 61 of the Law of 25 January 1985 was applicable. 24. The Government pointed out that the insolvency judge might have to draw up two very different types of reports in compulsory liquidation proceedings. The first type was a report under section 36 of the Law of 25 January 1985 that was required if it was at the insolvency judge's request that the commercial court had to decide whether to make an order for the undertaking to cease trading or to be liquidated. In such cases, the report was a procedural document that was communicated to the parties. That type of report was not relevant in the instant case as the application to the court had been made by the judicial administrator pursuant to section 61 of the Law of 1985 cited above. The applicant had not alleged that that report had not been communicated to him for comment. 25. Where – as in the instant case – the court was exercising jurisdiction on an application by the judicial administrator, the insolvency judge explained to the other members of the court all the measures he had taken during the observation period and gave them his opinion on the final decision which the court should take. There was no formal procedure for making that report and in practice it was usually done orally. Although in the present case the Commercial Court had expressly used the term “seen” in its judgment when referring to the report, that did not necessarily mean that a written document had been read. In the Government's submission, the insolvency judge's report in the latter type of case could be regarded as privileged from disclosure as forming part of the deliberations, since the insolvency judge's role in deliberations with his colleagues was similar to that of a judge rapporteur in a collegiate court. In its Reinhardt and Slimane-Kaïd v. France judgment (31 March 1998, Reports of Judgments and Decisions 1998-II, pp. 665-66, § 105), the Court had already ruled that the legal analysis of a case and the opinion of the advocate-general on the merits of an appeal to the Court of Cassation were “legitimately privileged from disclosure as forming part of the deliberations”. Moreover, since the report had not been communicated to any of the parties to the proceedings in the instant case, there had been no failure to maintain equality of arms between them. 26. The Government indicated for the first time at the hearing in answer to a question put by the Court that the judgment of 26 October 1993 contained a typographical error, a fact which the applicant's lawyer did not contest. The references to section 36 of the Law of 25 January 1985 were incorrect, the applicable provision in fact being section 61 of the Law as, the Government maintained, became apparent when the judgment was read as a whole, since it stated that the Commercial Court had obtained jurisdiction at the end of the observation period when the judicial administrator had asked it to adjudicate on the proposed recovery plan, a procedure prescribed by section 61, not section 36. 2. The Court's assessment 27. The Court reiterates that the right to adversarial proceedings “means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court's decision” (see the Lobo Machado v. Portugal judgment of 20 February 1996, Reports 1996-I, pp. 206-07, § 31). The principle of equality of arms “– one of the elements of the broader concept of fair trial – requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent” (see the Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 107, § 23). 28. The Court notes that for the first time at the hearing before it both the Government and the applicant said that, contrary to what was stated in the judgment, the Commercial Court had followed the procedure governed by section 61 of the Law of 25 January 1985, and not the section 36 procedure (see paragraph 16 above). That could be seen from the reasoning of the judgment taken as a whole. 29. The Court notes that the reasoning set out in the judgment shows that the cause before the Commercial Court proceeded as follows: an application was made by the judicial administrator for the court to rule on the applicant's proposed recovery plan; the Commercial Court examined the recovery plan, heard submissions from the judicial administrator and the creditors' representative and reached its decision in the light of the administrator's report. Those facts were not contested by the parties. 30. The Court notes that those events support the submission made at the hearing that the judgment was delivered pursuant to section 61 of the Law of 25 January 1985. It is thus satisfied that the reference in the judgment to section 36 of the Law of 1985 is a typographical error made when the document was drawn up (see, mutatis mutandis, Douiyeb v. the Netherlands [GC], no. 31464/96, § 52, 4 August 1999, unreported), a fact which the parties do not contest. 31. The procedure under section 61 does not provide for a written report to be lodged by the insolvency judge (see paragraph 19 above), unlike the procedure under section 36. The Court concludes from that that the reference in the judgment to the Commercial Court having seen the report was also an error. The case file shows that the applicant's complaint of a violation of Article 6 was based on those references in the judgment. 32. From the information available to the Court, it is therefore apparent that the applicant's complaint is based on erroneous references in the Commercial Court 's judgment. 33. In those special circumstances, the Court holds that there are no grounds for finding a violation of Article 6 § 1 in so far as it guarantees the right to a fair hearing and to equality of arms. B. Alleged lack of impartiality by the insolvency judge in the Commercial Court 1. The parties' submissions 34. The applicant questioned the subjective impartiality of the insolvency judge. In doing so, he pointed to matters set out in the Commercial Court 's judgment. He relied on the failure to communicate the insolvency judge's report, errors in the facts in the judgment and omissions in the reasoning regarding certain matters relating to the companies, difficulties encountered during the course of the observation period and the substantial indebtedness of the companies concerned. He added that relations between one of the companies and the insolvency judge had been conflictual. The applicant said that the Commercial Court had failed to rectify errors in the administrator's report and to hear adversarial argument about the criticism that had been made of candidates wishing to pursue the companies' activity and about the erroneous assessment of their professional capabilities. He added that no action had been taken against third parties guilty of criminal acts committed to the detriment of his companies. 35. In the applicant's submission, his concerns were justified by the following objective factors. Article 26 of the decree of 27 December 1985 laid down that, on pain of the judgment being declared null and void, the insolvency judge could not sit when the court was acting on its own initiative or was hearing an appeal against one of its own orders. The applicant maintained that it was inconsistent for the insolvency judge to be allowed to sit in certain cases but not in others, since the case file in insolvency proceedings was indivisible. Under the Law of 25 January 1985 (see paragraph 19 above), the insolvency judge had very wide powers during the period when the companies were under observation. Thus, during that stage of the proceedings, he played an active role in the companies' management and had powers of information and investigation enabling him to run the companies. In the instant case, the insolvency judge had made thirty orders in spheres ranging from dismissal to the attachment of accounts and the sale of movable and immovable property. On a number of points the applicant had disagreed with the insolvency judge and may therefore have formed the impression that he was appearing before an opponent. Further, a number of the insolvency judge's decisions indicated the position he would take in the trial court. That suggested to the applicant that an insolvency judge subsequently exerted a decisive influence over a commercial court's decision on a company's future. That influence was increased by his reports to his colleagues, on which no adversarial argument from the parties was heard. Nor did his colleagues take any active part in the commercial court's decision. It was for that reason that certain French commercial courts refused to allow the insolvency judge to take part in the deliberations of the trial court. The Court of Cassation, sitting as a full court, had in a decision of 5 February 1999 confirmed the necessity of separating the functions of the rapporteur from those of members of the Stock Exchange Regulatory Authority ( Commission des opérations de bourse ). One of the findings in that judgment was that the rapporteur was responsible for conducting an investigation into the facts with the assistance of the administrative services and for making any relevant inquiries. Moreover, the Grenoble Court of Appeal had held in a judgment of 11 September 1997 ( Dalloz 1998, J. 128) that the fact that an insolvency judge had sat on a trial bench infringed the principle that the investigation and trial stages should be kept separate. 36. The Government noted that individual judges were presumed to be impartial unless there was evidence to the contrary. Unlike the applicant, they considered that the judgment was couched in neutral terms and did not suggest any bias against the applicant. They therefore submitted that the applicant's concerns were not objectively justified. 37. Furthermore, the Government said that the manner in which the proceedings had been conducted had guaranteed the insolvency judge's neutrality, as the case had come before the Commercial Court at the request of the judicial administrator, not the insolvency judge, under section 61 of the Law of 1985 cited above. The Commercial Court was asked to rule on the applicant's proposed recovery plan. It was only because the plan did not appear viable that the court had decided to order the companies' liquidation. The court had been careful to request additional information from the applicant before reaching its decision. 38. When performing their duties during the observation period, insolvency judges did not have any preconceived ideas on the issues they would have to decide before the commercial court. That was because during the observation period insolvency judges were responsible for managing and supervising the activities of companies in difficulty. Their aim was to manage the various conflicting interests without jeopardising the direct functioning of the company. For that purpose they were empowered to make orders, against which an appeal lay to the commercial court. In the instant case, most of the orders made by the insolvency judge had concerned procedural issues. Only two orders (authorising redundancies) had directly concerned the economic exploitation of the applicant's companies. However, the Government considered that those orders had had no effect on the insolvency judge's capacity at the hearing before the Commercial Court to consider the issue at hand without prejudging it. 39. When sitting in the commercial court the insolvency judge's role was to account to his colleagues for the tasks which he had performed during the observation period. His opinion did not bind the other two judges called upon to decide whether the undertaking was viable. Thus, the commercial court was the sole judge and its judgment was unconnected with the various steps taken by the insolvency judge during the observation period. In the instant case, it had been the judicial administrator who had questioned the viability of the undertaking. He had pointed out that the applicant's proposed recovery plan contained areas of uncertainty which the applicant had to resolve. The Commercial Court had given the applicant time to produce all the guarantees necessary for his plan to be approved. In subsequently deciding to order the companies' liquidation, the Commercial Court had relied on objective factors relating to the lack of financial guarantees, the recent balance sheets of the companies and further information about their financial means. The Government submitted in conclusion that there was no evidence of any lack of impartiality on the part of the insolvency judge. 2. The Court's assessment 40. There are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case; the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, the Gautrin and Others v. France judgment of 20 May 1998, Reports 1998-III, pp. 1030-31, § 58). 41. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see, among other authorities, the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26). However, despite the applicant's submissions (see paragraph 34 above), the Court is not satisfied that there is evidence establishing that the insolvency judge acted with any personal prejudice. 42. As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see the Gautrin and Others judgment cited above, ibid.). 43. In the instant case, the concerns regarding the insolvency judge's impartiality stemmed from the fact that he had taken various measures concerning the companies during the observation period and subsequently presided over the court that had decided the companies' fate. 44. The Court accepts that that situation could raise doubts in the applicant's mind about the impartiality of the Commercial Court. However, it has to decide whether those doubts were objectively justified. 45. In that connection, the Court notes that the answer to that question depends on the circumstances of the case. For that reason, it cannot be bound by the decisions cited by the applicant; moreover, one of those decisions concerned a different sphere (see paragraph 35 above) while the other dealt with an aspect of insolvency proceedings that was different from that under consideration in the present case (see paragraph 20 above). Furthermore, the mere fact that a judge has already taken pre-trial decisions cannot by itself be regarded as justifying concerns about his impartiality. What matters is the scope and nature of the measures taken by the judge before the trial. Likewise, the fact that the judge has detailed knowledge of the case file does not entail any prejudice on his part that would prevent his being regarded as impartial when the decision on the merits is taken. Nor does a preliminary analysis of the available information mean that the final analysis has been prejudged. What is important is for that analysis to be carried out when judgment is delivered and to be based on the evidence produced and argument heard at the hearing (see, among other authorities, mutatis mutandis, the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 22, § 50; the Nortier v. the Netherlands judgment of 24 August 1993, Series A no. 267, p. 15, § 33; and the Saraiva de Carvalho v. Portugal judgment of 22 April 1994, Series A no. 286-B, p. 38, § 35). 46. In the light of those principles, the Court considers that the applicant's concerns cannot be justified in themselves by the fact that the insolvency judge took certain decisions during the observation period (orders concerning the management of the companies, dismissals and interim measures). His knowledge of the case file was not in itself decisive either. As regards the influence which the applicant alleged the insolvency judge had on the bench, it is not in issue here. 47. All the Court has to decide is whether, having regard to the nature and extent of his functions during the observation period and of the measures adopted, the insolvency judge displayed any bias regarding the decision to be taken by the Commercial Court. Such would have been the case if the issues dealt with by the insolvency judge during the observation period were analogous to those on which he ruled as a member of the trial court (see the Saraiva de Carvalho judgment cited above, p. 39, § 38). 48. There is nothing in the case file to suggest that that was the case here. The case file shows that the insolvency judge made orders dealing with questions relating to the companies' economic and financial survival and staff management during the observation period. Under the applicable domestic law, his role was to ensure that the proceedings advanced rapidly and that relevant interests were protected. When the Commercial Court presided over by the insolvency judge subsequently acquired jurisdiction under section 61 of the Law of 25 January 1985 (that is to say, contrary to the applicant's submission, without a written report from him), it was required to assess the mid- to long-term viability of the applicant's plan for the companies' continued trading at the end of the observation period. In that connection, the Commercial Court had to examine the financial guarantees and other evidence produced by the applicant at the hearing and the circumstances of the companies at that time (as regards such matters as staff and immovable property, and the fact that they were trading in a difficult sector). It also relied on information supplied by the administrator. The Commercial Court 's assessment was based on evidence that was produced and was the subject of argument at the hearing. That is attested by the fact that the Commercial Court did not finally decide the case until it had requested and obtained from the applicant additional documents proving the credibility of the guarantees he had produced. The Court notes, therefore, that the insolvency judge had to deal with two quite separate issues. Although, as a result of his role during the observation period, he had acquired special knowledge of the companies' circumstances (one of the factors to which the Commercial Court had regard in its decision), nonetheless he could not have formed a view at that juncture on the plan proposed by the applicant at the hearing before the court for the continuation of the activity, while the viability of that plan was assessed by the Commercial Court in the light of the guarantees furnished and examined at the hearing (see, mutatis mutandis, the judgments cited above: Saraiva de Carvalho, p. 39, § 38 in fine, and, a contrario, Hauschildt). 49. The Court, therefore, does not find in the present case any objective grounds for believing that the nature and extent of the insolvency judge's duties during the observation period (which were intended to ensure the day to day management of the companies) gave rise to any prejudice on the – separate – issue which the Commercial Court had to decide regarding the viability of the applicant's plan for the companies continued trading at the end of the observation period and of the financial guarantees produced at the hearing. 50. In the light of the special circumstances of the present case, the Court finds that the applicant's concerns were not objectively justified. Consequently, there has been no violation of Article 6 § 1 to the extent that it guarantees the right to an impartial tribunal. | The Court held that there had been no violation of Article 6 § 1 of the Convention, finding that the applicant’s concerns had not been objectively justified. It noted in particular that the mere fact that a judge had already taken pre-trial decisions could not by itself be regarded as justifying concerns about his impartiality. What mattered was the scope and nature of the measures taken by the judge before the trial. Likewise, the fact that the judge had detailed knowledge of the case file did not entail any prejudice on his part that would prevent his being regarded as impartial when the decision on the merits was taken. Nor did a preliminary analysis of the available information mean that the final analysis had been prejudged. What was important was for that analysis to be carried out when judgment was delivered and to be based on the evidence produced and argument heard at the hearing. In the applicant’s case, the Court did not find any objective grounds for believing that the nature and extent of the insolvency judge’s duties during the observation period (which were intended to ensure the day to day management of the companies) gave rise to any prejudice on the – separate – issue which the Commercial Court had to decide regarding the viability of the applicant’s plan for the companies continued trading at the end of the observation period and of the financial guarantees produced at the hearing. |
843 | Interception of communications, phone tapping and secret surveillance | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Applicable legislation 1. Subject access requests under the Data Protection Act (“DPA”) 1998 21. Section 7(1) DPA grants individuals the right to request details of any information about them held by persons or organisations which record, store, or process personal data. 22. Under section 28 DPA, personal data is exempt from disclosure under section 7(1) if an exemption is required for the purpose of safeguarding national security. 2. The Human Rights Act 1998 23. The HRA incorporates the Convention into United Kingdom law. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, except where it is constrained to act in that way as a result of primary legislation which cannot be interpreted so as to be compatible with Convention rights. Under section 7(1), a person claiming that a public authority has acted unlawfully under section 6(1) may bring proceedings against it in the appropriate court or rely on the Convention right in any legal proceedings. 24. Under section 4(2), if a court is satisfied that a provision of primary legislation is incompatible with a Convention right, it may make a declaration of that incompatibility. “Court”, in section 4, is defined as meaning the Supreme Court; the Judicial Committee of the Privy Council; the Court Martial Appeal Court; in Scotland, the High Court of Justiciary (sitting otherwise than as a trial court) or the Court of Session; or in England and Wales or Northern Ireland, the High Court or the Court of Appeal. Section 4(6) clarifies that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the legislative provision in question and is not binding on the parties to the proceedings in which it is made. 3. Interception warrants 25. Since 2 October 2000, the interception of communications has been regulated by the Regulation of Investigatory Powers Act 2000 (“ RIPA ”). The explanatory notes which accompany RIPA explain that the main purpose of RIPA is to ensure that investigatory powers are exercised in accordance with human rights. 26. Section 71 RIPA provides for the adoption of codes of practice by the Secretary of State in relation to the exercise and performance of his powers and duties under the Act. Draft codes of practice must be laid before Parliament and are public documents. They can only enter into force in accordance with an order of the Secretary of State. The Secretary of State can only make such an order if a draft of the order has been laid before Parliament and approved by a resolution of each House. 27. Under section 72(1) RIPA, a person exercising or performing any power or duty relating to interception of communications must have regard to the relevant provisions of a code of practice. The provisions of a code of practice may, in appropriate circumstances, be taken into account by courts and tribunals under section 72(4) RIPA. 28. The Interception of Communications Code of Practice (“the Code”) entered into force on 1 July 2002. It is now available on the Home Office website. a. The issue of an interception warrant 29. Interception is permitted in several cases, exhaustively listed in section 1 (5) RIPA. Section 1(5)(b), the relevant provision in the present case, provides that interception is lawful if authorised by an interception warrant. Any unlawful interception is a criminal offence under section 1(1). 30. Section 2(2) defines “interception” as follows: “ For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he– (a) so modifies or interferes with the system, or its operation, (b) so monitors transmissions made by means of the system, or (c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system, as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication .” 31. Section 5 (1) allows the Secretary of State to issue a warrant authorising the interception of the communications described in the warrant. Under section 5(2), no warrant for interception of internal communications (i.e. communications within the United Kingdom ) shall be issued unless the Secretary of State believes : “ (a) that the warrant is necessary on grounds falling within subsection (3); and (b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. 32. Section 5 (3) provides: “ Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary – (a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; [ or] (c) for the purpose of safeguarding the economic well-being of the United Kingdom ...” 33. The term “national security” is not defined in RIPA. However, it has been clarified by the Interception of Communications Commissioner appointed under RIPA's predecessor ( the Interception of Communications Act 1985 ) who, in his 1986 report, stated that he had adopted the following definition: “ [activities] which threaten the safety or well-being of the State, and which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means.” 34. Section 81(2)(b) RIPA defines “serious crime” as crime which satisfies one of the following criteria: “( a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more; (b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose. ” 35. Section 81(5) provides: “ For the purposes of this Act detecting crime shall be taken to include – (a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and (b) the apprehension of the person by whom any crime was committed; and any reference in this Act to preventing or detecting serious crime shall be construed accordingly ... ” 36. Under section 5(4), the Secretary of State must, when assessing whether the requirements in section 5(2) are met, consider whether the information sought to be obtained under the warrant could reasonably be obtained by other means. 37. Section 5(5) provides that a warrant shall not be considered necessary for the purpose of safeguarding the economic well-being of the United Kingdom unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British Islands. 38. Section 7(2)(a) requires the Secretary of State personally to issue all warrants of the nature at issue in the present case, except in cases of urgency where he must nonetheless personally authorise the issuing of the warrant. Section 6(2) provides an exhaustive list of those who may apply for an interception warrant, including the heads of national intelligence bodies, heads of police forces and the Customs and Excise Commissioners. 39. Paragraphs 2.4 to 2.5 of the Code provide additional guidance on the application of the proportionality and necessity test in section 5(2): “ 2.4 Obtaining a warrant under the Act will only ensure that the interception authorised is a justifiable interference with an individual's rights under Article 8 of the European Convention of Human Rights (the right to privacy) if it is necessary and proportionate for the interception to take place. The Act recognises this by first requiring that the Secretary of State believes that the authorisation is necessary on one or more of the statutory grounds set out in section 5(3) of the Act. This requires him to believe that it is necessary to undertake the interception which is to be authorised for a particular purpose falling within the relevant statutory ground. 2.5 Then, if the interception is necessary, the Secretary of State must also believe that it is proportionate to what is sought to be achieved by carrying it out. This involves balancing the intrusiveness of the interference, against the need for it in operational terms. Interception of communications will not be proportionate if it is excessive in the circumstances of the case or if the information which is sought could reasonably be obtained by other means. Further, all interception should be carefully managed to meet the objective in question and must not be arbitrary or unfair. ” b. The contents of an application and an interception warrant 40. Section 8 sets out the requirements as to the contents of an interception warrant as regards the identification of the communications to be intercepted : “ (1) An interception warrant must name or describe either – (a) one person as the interception subject; or (b) a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place. (2) The provisions of an interception warrant describing communications the interception of which is authorised or required by the warrant must comprise one or more schedules setting out the addresses, numbers, apparatus or other factors, or combination of factors, that are to be used for identifying the communications that may be or are to be intercepted. (3) Any factor or combination of factors set out in accordance with subsection (2) must be one that identifies communications which are likely to be or to include – (a) communications from, or intended for, the person named or described in the warrant in accordance with subsection (1); or (b) communications originating on, or intended for transmission to, the premises so named or described. ” 41. Paragraph 4.2 of the Code provides: “ An application for a warrant is made to the Secretary of State. Interception warrants, when issued, are addressed to the person who submitted the application. This person may then serve a copy upon any person who may be able to provide assistance in giving effect to that warrant. Each application, a copy of which must be retained by the applicant, should contain the following information: Background to the operation in question. Person or premises to which the application relates (and how the person or premises feature in the operation). Description of the communications to be intercepted, details of the communications service provider(s) and an assessment of the feasibility of the interception operation where this is relevant. Description of the conduct to be authorised as considered necessary in order to carry out the interception, where appropriate. An explanation of why the interception is considered to be necessary under the provisions of section 5(3). A consideration of why the conduct to be authorised by the warrant is proportionate to what is sought to be achieved by that conduct. A consideration of any unusual degree of collateral intrusion and why that intrusion is justified in the circumstances. In particular, where the communications in question might affect religious, medical or journalistic confidentiality or legal privilege, this must be specified in the application. Where an application is urgent, supporting justification should be provided. An assurance that all material intercepted will be handled in accordance with the safeguards required by section 15 of the Act. ” c. Safeguards 42. Section 15 RIPA is entitled “Restrictions on use of intercepted material etc.” and provides, insofar as relevant to internal communications, as follows : “(1) ... it shall be the duty of the Secretary of State to ensure, in relation to all interception warrants, that such arrangements are in force as he considers necessary for securing – (a) that the requirements of subsections (2) and (3) are satisfied in relation to the intercepted material and any related communications data; ... (2) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following – (a) the number of persons to whom any of the material or data is disclosed or otherwise made available, (b) the extent to which any of the material or data is disclosed or otherwise made available, (c) the extent to which any of the material or data is copied, and (d) the number of copies that are made, is limited to the minimum that is necessary for the authorised purposes. (3) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data (if not destroyed earlier) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes. (4) For the purposes of this section something is necessary for the authorised purposes if, and only if – (a) it continues to be, or is likely to become, necessary as mentioned in section 5(3); ... (5) The arrangements for the time being in force under this section for securing that the requirements of subsection (2) are satisfied in relation to the intercepted material or any related communications data must include such arrangements as the Secretary of State considers necessary for securing that every copy of the material or data that is made is stored, for so long as it is retained, in a secure manner ... ” 43. Section 16 sets out extra safeguards which apply in the case of interception of external communications only. 44. Section 19 imposes a broad duty on all those involved in interception under RIPA to keep secret, among other matters, “everything in the intercepted material” (section 19(3)(e)). Under section 19(4), disclosure of such material is a criminal offence punishable by up to five years'imprisonment. 45. Paragraph 6.1 of the Code requires all material intercepted under the authority of a section 8(l) warrant to be handled in accordance with safeguards put in place by the Secretary of State under section 15 of the Act. Details of the safeguards are made available to the Commissioner (see paragraph 57 below) and any breach of the safeguards must be reported to him. 46. Paragraphs 6.4 to 6.8 of the Code provide further details of the relevant safeguards: “ Dissemination of intercepted material 6.4 The number of persons to whom any of the material is disclosed, and the extent of disclosure, must be limited to the minimum that is necessary for the authorised purposes set out in section 15(4) of the Act. This obligation applies equally to disclosure to additional persons within an agency, and to disclosure outside the agency. It is enforced by prohibiting disclosure to persons who do not hold the required security clearance, and also by the need-to-know principle: intercepted material must not be disclosed to any person unless that person's duties, which must relate to one of the authorised purposes, are such that he needs to know about the material to carry out those duties. In the same way only so much of the material may be disclosed as the recipient needs; for example if a summary of the material will suffice, no more than that should be disclosed. 6.5 The obligations apply not just to the original interceptor, but also to anyone to whom the material is subsequently disclosed. In some cases this will be achieved by requiring the latter to obtain the originator's permission before disclosing the material further. In others, explicit safeguards are applied to secondary recipients. Copying 6.6 Intercepted material may only be copied to the extent necessary for the authorised purposes set out in section 15(4) of the Act. Copies include not only direct copies of the whole of the material, but also extracts and summaries which identify themselves as the product of an interception, and any record referring to an interception which is a record of the identities of the persons to or by whom the intercepted material was sent. The restrictions are implemented by requiring special treatment of such copies, extracts and summaries that are made by recording their making, distribution and destruction. Storage 6.7 Intercepted material, and all copies, extracts and summaries of it, must be handled and stored securely, so as to minimise the risk of loss or theft. It must be held so as to be inaccessible to persons without the required level of security clearance. This requirement to store intercept product securely applies to all those who are responsible for the handling of this material, including communications service providers ... Destruction 6.8 Intercepted material, and all copies, extracts and summaries which can be identified as the product of an interception, must be securely destroyed as soon as it is no longer needed for any of the authorised purposes. If such material is retained, it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid under section 15(3) of the Act. ” 47. Specific guidance is given as to the vetting of those involved in intercept activities in paragraph 6.9 of the Code : “ 6.9 Each intercepting agency maintains a distribution list of persons who may have access to intercepted material or need to see any reporting in relation to it. All such persons must be appropriately vetted. Any person no longer needing access to perform his duties should be removed from any such list. Where it is necessary for an officer of one agency to disclose material to another, it is the former's responsibility to ensure that the recipient has the necessary clearance. ” 48. The Government's policy on security vetting was announced to Parliament by the Prime Minister on 15 December 1994. In his statement, the Prime Minister explained the procedure for security vetting and the kinds of activities which would lead to the exclusion of an individual from participation in work vital to the interests of the State. 49. The Security Service Act 1989 and the Intelligence Services Act 1994 impose further obligations on the heads of the security and intelligence services to ensure the security of information in their possession. d. Duration of an interception warrant 50. Section 9(1)(a) provides that an interception warrant for internal communications ceases to have effect at the end of the “relevant period” The “relevant period” is defined in section 9(6) as: “ (a) in relation to an unrenewed warrant issued in a case [issued] under the hand of a senior official, ... the period ending with the fifth working day following the day of the warrant's issue; (b) in relation to a renewed warrant the latest renewal of which was by an instrument endorsed under the hand of the Secretary of State with a statement that the renewal is believed to be necessary on grounds falling within section 5(3)(a) [national security] or (c) [economic well-being], ... the period of six months beginning with the day of the warrant's renewal; and (c) in all other cases, ... the period of three months beginning with the day of the warrant's issue or, in the case of a warrant that has been renewed, of its latest renewal. ” 51. Section 9(1)(b) provides that an interception warrant may be renewed by the Secretary of State at any time before its expiry where he believes that the warrant continues to be necessary on grounds falling within section 5(3). 52. The Secretary of State is required under Section 9(3) to cancel an interception warrant if he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3). 53. Section 10(2) imposes an obligation on the Secretary of State to delete any factor set out in a schedule to an interception warrant which he considers is no longer relevant for identifying communications which, in the case of that warrant, are likely to be or to include communications from, or intended for, the interception subject. 54. Paragraph 4.13 of the Code provides: “The Secretary of State may renew a warrant at any point before its expiry date. Applications for renewals must be made to the Secretary of State and should contain an update of the matters outlined in paragraph 4.2 above. In particular, the applicant should give an assessment of the value of interception to the operation to date and explain why he considers that interception continues to be necessary for one or more of the purposes in section 5(3).” 55. Paragraph 4.16 of the Code provides: “ The Secretary of State is under a duty to cancel an interception warrant if, at any time before its expiry date, he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3) of the Act. Intercepting agencies will therefore need to keep their warrants under continuous review. In practice, cancellation instruments will be signed by a senior official on his behalf. ” e. Duty to keep records 56. Paragraph 4.18 of the Code imposes record-keeping obligations on intercepting agencies and provides: “ The oversight regime allows the Interception of Communications Commissioner to inspect the warrant application upon which the Secretary of State based his decision, and the applicant may be required to justify the content. Each intercepting agency should keep the following to be made available for scrutiny by the Commissioner as he may require: all applications made for warrants complying with section 8(l) and applications made for the renewal of such warrants; all warrants, and renewals and copies of schedule modifications (if any); where any application is refused, the grounds for refusal as given by the Secretary of State; the dates on which interception is started and stopped. ” 4. The Commissioner a. Appointment and functions 57. Section 57 RIPA provides that the Prime Minister shall appoint an Interception of Communications Commissioner (“the Commissioner”). He must be a person who holds or has held high judicial office. The Commissioner is appointed for a three-year, renewable term. To date, there have been two Commissioners appointed under RIPA. Both are former judges of the Court of Appeal. 58. The Commissioner's functions include to keep under review the exercise and performance by the Secretary of State of powers and duties in relation to interception conferred or imposed on him by RIPA; the exercise and performance of powers and duties in relation to interception by the persons on whom such powers or duties are conferred or imposed; and the adequacy of the arrangements by virtue of which the duty which is imposed on the Secretary of State by section 15 (safeguards – see paragraph 42 above ) is sought to be discharged. 59. Section 58 RIPA places a duty on those involved in the authorisation or execution of interception warrants to disclose to the Commissioner all documents and information which he requires in order to carry out his functions. As noted above (see paragraph 56 ), the Code requires intercepting agencies to keep accurate and comprehensive records for this purpose. 60. In his 2005-2006 report, the Commissioner described his inspections as follows: “12. In accordance with [my] duties I have continued my practice of making twice yearly visits to ... the intercepting agencies and the departments of the Secretaries of State/Ministers which issue the warrants. Prior to each visit, I obtain a complete list of warrants issued or renewed or cancelled since my previous visit. I then select, largely at random, a sample of warrants for inspection. In the course of my visit I satisfy myself that those warrants fully meet the requirements of RIPA, that proper procedures have been followed and that the relevant safeguards and Codes of Practice have been followed. During each visit I review each of the files and the supporting documents and, when necessary, discuss the cases with the officers concerned. I can view the product of interception. It is of first importance to ensure that the facts justified the use of interception in each case and that those concerned with interception fully understand the safeguards and the Codes of Practice. 13. I continue to be impressed by the quality, dedication and enthusiasm of the personnel carrying out this work on behalf of the Government and the people of the United Kingdom. They have a detailed understanding of the legislation and are always anxious to ensure that they comply both with the legislation and the appropriate safeguards ... ” 61. The Commissioner is required to report to the Prime Minister if he finds that there has been a violation of the provisions of RIPA or if he considers that the safeguards under section 15 have proved inadequate ( sections 58(2) and (3) RIPA ). The Commissioner must also make an annual report to the Prime Minister regarding the exercise of his functions (section 58(4)). Under section 58(6), the Prime Minister must lay the annual report of the Commissioner before Parliament. Finally, the Commissioner is required to assist the IPT with any request for information or advice it may make (section 57(3) and paragraph 78 below) ). b. Relevant extracts of reports 62. In his 2000 report, the Commissioner noted, as regards the discharge of their duties by the Secretaries of State: “12. ... I have been impressed with the care that they take with their warrantry work, which is very time consuming, to ensure that warrants are issued only in appropriate cases and, in particular, in ensuring that the conduct authorised is proportionate to what is sought to be achieved by the intercepts.” 63. At paragraph 15, on the question of safeguards, he said: “ ... my advice and approval were sought and given in respect of the safeguard documents either before or shortly after 2 October 2000. The Home Secretary also sought my advice in relation to them and they were approved by him ... ” 64. As to the need for secret surveillance powers, the Commissioner commented: “45. The interception of communications is, as my predecessors have expressed in their Report, an invaluable weapon for the purpose set out in section 5(3) of RIPA and, in particular, in the battle against serious crime ...” 65. In his report for 2001, the Commissioner noted: “ 10. Many members of the public are suspicious about the interception of communications, and some believe that their own conversations are subject to unlawful interception by the security, intelligence or law enforcement agencies ... In my oversight work I am conscious of these concerns. However, I am as satisfied as I can be that the concerns are, in fact, unfounded. Interception of an individual's communications can take place only after a Secretary of State has granted a warrant and the warrant can be granted on strictly limited grounds set out in Section 5 of RIPA, essentially the interests of national security and the prevention or detection of serious crime. Of course, it would theoretically be possible to circumvent this procedure, but there are in place extensive safeguards to ensure that this cannot happen, and it is an important part of my work to ensure that these are in place, and that they are observed. Furthermore, any attempt to get round the procedures which provide for legal interception would, by reason of the safeguards, involve a major conspiracy within the agency concerned which I believe would, for practical purposes, be impossible. I am as satisfied as it is possible to be that deliberate unlawful interception of communications of the citizen does not take place ... ” 66. He said of the section 15 safeguards : “ 31. In addressing the safeguards contained within section 15 of RIPA, GCHQ developed a new set of internal compliance documentation for staff, together with an extensive training programme that covered staff responsibilities under both RIPA and the Human Rights Act. This compliance documentation was submitted to the Foreign Secretary who was satisfied that it described and governed the arrangements required under section 15. I have also been told it also constituted the written record of the arrangements required to be put in place by the Director, GCHQ, under section 4(2)(a) of the Intelligence Services Act 1994 (to ensure that no information is obtained or disclosed by GCHQ except so far as is necessary for its statutory functions). In discharging my functions under section 57(1)(d), I examined the documentation and the processes which underpin it and satisfied myself that adequate arrangements existed for the discharge of the Foreign Secretary's duties under section 15 of RIPA. Of course, GCHQ recognises that its compliance processes must evolve over time, particularly as they become more familiar with the intricacies of the new legislation and develop new working practices, and that the process of staff education remains a continuing one. To this end, GCHQ has developed further training programmes and is issuing revised compliance documentation as part of the ongoing process (see also ... paragraph 56 under Safeguards). 32. In advance of the coming into force of RIPA, GCHQ approached me as to the warrants it would seek after that date and provided a detailed analysis as to how those warrants would be structured – this was helpful as it gave me an insight into how GCHQ saw the workings of RIPA/Human Rights Act and permitted me to comment in advance. Since the commencement of RIPA, in reviewing warrants I have looked carefully at the factors to be considered by the Secretary of State when determining whether to issue an interception warrant, and especially the new requirement to consider'proportionality'under section [ 5(2)(b) ] of RIPA. ” 67. Again, he commented on the diligence of the authorities in carrying out their duties under the Act: “56. Sections 15 and 16 of RIPA lay a duty on the Secretary of State to ensure that arrangements are in force as safeguards in relation to dissemination, disclosure, copying, storage, and destruction etc., of intercepted material. These sections require careful and detailed safeguards to be drafted by each of the agencies referred to earlier in this Report and for those safeguards to be approved by the Secretary of State. This had been done. I have been impressed by the care with which these documents have been drawn up, reviewed and updated in the light of technical and administrative developments. Those involved in the interception process are aware of the invasive nature of this technique, and care is taken to ensure that intrusions of privacy are kept to the minimum. There is another incentive to agencies to ensure that these documents remain effective in that the value of interception would be greatly diminished as a covert intelligence tool should its existence and methodology become too widely known. The sections 15 and 16 requirements are very important. I am satisfied that the agencies are operating effectively within their safeguards. ” 68. The Commissioner's 2002 report noted: “18. ... As I mentioned in my last Report I have been impressed by the care with which [the safeguard] documents have been drawn up. My advice and approval was sought for the documents and I am approached to agree amendments to the safeguards when they are updated in light of technical and administrative developments .” 69. This was repeated in paragraph 16 of his 2004 report. 70. In his 2005-2006 report, the Commissioner explained his role as follows: “7. ... essentially I see the role of Commissioner as encompassing these primary headings: (a) To protect people in the United Kingdom from any unlawful intrusion of their privacy. This is provided for by Article 8 of the European Convention on Human Rights. I must be diligent to ensure that this does not happen, and alert to ensure that there are systems in place so that this does not and cannot happen. Over the long period that I have held my present post, I have found no evidence whatsoever of any desire within the Intelligence or the Law Enforcement Agencies in this field to act wrongfully or unlawfully. On the contrary, I have found a palpable desire on the part of all these Agencies to ensure that they do act completely within the four walls of the law. To this end, they welcome the oversight of the Commissioner and over the years have frequently sought my advice on issues that have arisen, and they have invariably accepted it. In any event, I believe that the legislation together with the safeguards and Codes of Practice that are in place make it technically virtually impossible to deliberately intercept a citizen's communications unlawfully with intent to avoid legal requirements. (b) To assist the Agencies to do the work entrusted to them and, bearing in mind the number of organisations that I am now required to oversee, this occurs quite frequently. My work is, of course, limited to the legal as opposed to the operational aspects of their work. They take great care with their work and I have been impressed by its quality. (c) To ensure that proper safeguards and Codes of Practice are in place to protect the public and the Agencies themselves. These have to be approved by the Secretaries of State. But every Secretary of State with whom I have worked has required to be informed as to whether the Commissioner has approved them before he or she is willing to do so. (d) To advise Ministers, and Government Departments, in relation to issues arising on the interception of communications, the acquisition and disclosure of communications data, to approve the safeguards documents and the Codes of Practice. ” 71. The Commissioner said of the Secretaries of State whom he had met in the previous year: “ 14. It is clear to me that each of them gives a substantial amount of time and takes considerable care to satisfy himself or herself that warrants are necessary for the authorised purposes, and that what is proposed is proportionate. If the Secretary of State wishes to have further information in order to be satisfied that he or she should grant the warrant then it is requested and given. Outright and final refusal of an application is comparatively rare, because the requesting agencies and the senior officials in the Secretary of State's Department scrutinise the applications with care before they are submitted for approval. However, the Secretary of State may refuse to grant the warrant if he or she considers, for example, that the strict requirements of necessity or proportionality are not met, and the agencies are well aware that the Secretary of State does not act as a'rubber stamp'.” 72. In his 2007 report, The Commissioner commented on the importance of interception powers in tackling terrorism and serious crime: “2.9 I continue to be impressed as to how interception has contributed to a number of striking successes during 2007. It has played a key role in numerous operations including, for example, the prevention of murders, tackling large-scale drug importations, evasion of Excise duty, people smuggling, gathering intelligence both within the United Kingdom and overseas on terrorist and various extremist organisations, confiscation of firearms, serious violent crime and terrorism. I have provided fully detailed examples in the Confidential Annex to this Report. I think it is very important that the public is re-assured as to the benefits of this highly intrusive investigative tool particularly in light of the on-going debate about whether or not intercept product should be used as evidence in a court of law. ... 7.1 As I said in my first Report last year, the interception of communications is an invaluable weapon for the purposes set out in section 5(3) of RIPA. It has continued to play a vital part in the battle against terrorism and serious crime, and one that would not have been achieved by other means ... ” 73. As regards errors by the relevant agencies in the application of RIPA's provisions, he noted : “2.10 Twenty-four interception errors and breaches have been reported to me during the course of 2007. This is the same number of errors reported in my first Annual Report (which was for a shorter period) and is a significant decrease in the number reported by my predecessor. I consider the number of errors to be too high. By way of example, details of some of these errors are recorded below. It is very important from the point of view of the public that I stress that none of the breaches or errors were deliberate, that all were caused by human error or procedural error or by technical problems and that in every case either no interception took place or, if there was interception, the product was destroyed immediately on discovery of the error. The most common cause of error tends to be the simple transposition of numbers by mistake e.g., 1965 instead of 1956. The examples that I give are typical of the totality and are anonymous so far as the targets are concerned. Full details of all the errors and breaches are set out in the Confidential Annex. ” 74. According to the statistics in the report, on 31 December 2007, 929 interception warrants issued by the Home Secretary were in force. 5. The Investigatory Powers Tribunal a. The establishment of the IPT, its powers and its procedures 75. The IPT was established under section 65(1) RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by RIPA. Members of the tribunal must hold or have held high judicial office or be a qualified lawyer of at least ten years'standing. Any person may bring a claim before the IPT and, save for vexatious or frivolous applications, the IPT must determine all claims brought before it (sections 67(1), (4) and (5) RIPA). 76. Section 65(2) provides that the IPT is the only appropriate forum in relation to proceedings for acts incompatible with Convention rights which are proceedings against any of the intelligence services; and complaints by persons who allege to have been subject to the investigatory powers of RIPA. It has jurisdiction to investigate any complaint that a person's communications have been intercepted and, where interception has occurred, to examine the authority for such interception. Sections 67(2) and 67(3)(c) provide that the IPT is to apply the principles applicable by a court on an application for judicial review. 77. Under section 67(8) RIPA, there is no appeal from a decision of the IPT “ except to such extent as the Secretary of State may by order otherwise provide ”. No order has been passed by the Secretary of State. 78. Under section 68(2), the IPT has the power to require a relevant Commissioner to provide it with all such assistance (including the Commissioner's opinion as to any issue falling to be determined by the IPT ) as it thinks fit. Section 68(6) and (7) requires those involved in the authorisation and execution of an interception warrant to disclose or provide to the IPT all documents and information it may require. 79. Section 68(4) deals with reasons for the IPT's decisions and provides that: “ Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either— (a) a statement that they have made a determination in his favour; or (b) a statement that no determination has been made in his favour.” 80. The IPT has the power to award compensation and to make such other orders as it thinks fit, including orders quashing or cancelling any section 8(1) warrant and orders requiring the destruction of any records obtained under a section 8(1) warrant (section 67(7) RIPA ). In the event that a claim before the IPT is successful, the IPT is generally required to make a report to the Prime Minister (section 68(5)). b. The power to adopt rules of procedure 81. As to procedure, section 68 (1) provides as follows: “ Subject to any rules made under section 69, the Tribunal shall be entitled to determine their own procedure in relation to any proceedings, complaint or reference brought before or made to them. ” 82. Section 69(1) RIPA provides that the Secretary of State may make rules regulating any matters preliminary or incidental to, or arising out of, the hearing or consideration of any proceedings before it. Under section 69(2), such rules may: “ (c) prescribe the form and manner in which proceedings are to be brought before the Tribunal or a complaint or reference is to be made to the Tribunal; ... (f) prescribe the forms of hearing or consideration to be adopted by the Tribunal in relation to particular proceedings, complaints or references ...; (g) prescribe the practice and procedure to be followed on, or in connection with, the hearing or consideration of any proceedings, complaint or reference (including, where applicable, the mode and burden of proof and the admissibility of evidence); (h) prescribe orders that may be made by the Tribunal under section 67(6) or (7); (i) require information about any determination, award, order or other decision made by the Tribunal in relation to any proceedings, complaint or reference to be provided (in addition to any statement under section 68(4)) to the person who brought the proceedings or made the complaint or reference, or to the person representing his interests. ” 83. Section 69(6) provides that in making the rules the Secretary of State shall have regard to : “ (a) the need to secure that matters which are the subject of proceedings, complaints or references brought before or made to the Tribunal are properly heard and considered; and (b) the need to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services. ” c. The Rules 84. The Secretary of State has adopted rules to govern the procedure before the IPT in the form of the Investigatory Powers Tribunal Rules 2000 ( “ the Rules”). The Rules cover various aspects of the procedure before the IPT. As regards disclosure of information, Rule 6 provides: “ (1) The Tribunal shall carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services. (2) Without prejudice to this general duty, but subject to paragraphs (3) and (4), the Tribunal may not disclose to the complainant or to any other person: (a) the fact that the Tribunal have held, or propose to hold, an oral hearing under rule 9(4); (b) any information or document disclosed or provided to the Tribunal in the course of that hearing, or the identity of any witness at that hearing; (c) any information or document otherwise disclosed or provided to the Tribunal by any person pursuant to section 68(6) of the Act (or provided voluntarily by a person specified in section 68(7)); (d) any information or opinion provided to the Tribunal by a Commissioner pursuant to section 68(2) of the Act; (e) the fact that any information, document, identity or opinion has been disclosed or provided in the circumstances mentioned in sub-paragraphs (b) to (d). (3) The Tribunal may disclose anything described in paragraph (2) with the consent of: (a) in the case of sub-paragraph (a), the person required to attend the hearing; (b) in the case of sub-paragraphs (b) and (c), the witness in question or the person who disclosed or provided the information or document; (c) in the case of sub-paragraph (d), the Commissioner in question and, to the extent that the information or opinion includes information provided to the Commissioner by another person, that other person; (d) in the case of sub-paragraph (e), the person whose consent is required under this rule for disclosure of the information, document or opinion in question. (4) The Tribunal may also disclose anything described in paragraph (2) as part of the information provided to the complainant under rule 13(2), subject to the restrictions contained in rule 13(4) and (5). (5) The Tribunal may not order any person to disclose any information or document which the Tribunal themselves would be prohibited from disclosing by virtue of this rule, had the information or document been disclosed or provided to them by that person. (6) The Tribunal may not, without the consent of the complainant, disclose to any person holding office under the Crown (except a Commissioner) or to any other person anything to which paragraph (7) applies. (7) This paragraph applies to any information or document disclosed or provided to the Tribunal by or on behalf of the complainant, except for ... statements [as to the complainant's name, address and date of birth and the public authority against which the proceedings are brought] .” 85. Rule 9 deals with the forms of hearings and consideration of the complaint: “ (1) The Tribunal's power to determine their own procedure in relation to section 7 proceedings and complaints shall be subject to this rule. (2) The Tribunal shall be under no duty to hold oral hearings, but they may do so in accordance with this rule (and not otherwise). (3) The Tribunal may hold, at any stage of their consideration, oral hearings at which the complainant may make representations, give evidence and call witnesses. (4) The Tribunal may hold separate oral hearings which: (a) the person whose conduct is the subject of the complaint, (b) the public authority against which the section 7 proceedings are brought, or (c) any other person specified in section 68(7) of the Act, may be required to attend and at which that person or authority may make representations, give evidence and call witnesses. (5) Within a period notified by the Tribunal for the purpose of this rule, the complainant, person or authority in question must inform the Tribunal of any witnesses he or it intends to call; and no other witnesses may be called without the leave of the Tribunal. (6) The Tribunal's proceedings, including any oral hearings, shall be conducted in private. ” 86. The taking of evidence is addressed in Rule 11: “ (1) The Tribunal may receive evidence in any form, and may receive evidence that would not be admissible in a court of law. (2) The Tribunal may require a witness to give evidence on oath. (3) No person shall be compelled to give evidence at an oral hearing under rule 9(3). ” 87. Finally, Rule 13 provides guidance on notification to the complainant of the IPT's findings: “ (1) In addition to any statement under section 68(4) of the Act, the Tribunal shall provide information to the complainant in accordance with this rule. (2) Where they make a determination in favour of the complainant, the Tribunal shall provide him with a summary of that determination including any findings of fact. ... (4) The duty to provide information under this rule is in all cases subject to the general duty imposed on the Tribunal by rule 6(1). (5) No information may be provided under this rule whose disclosure would be restricted under rule 6(2) unless the person whose consent would be needed for disclosure under that rule has been given the opportunity to make representations to the Tribunal.” d. The practice of the IPT 88. In its joint ruling on preliminary issues of law (see paragraph 16 above), the IPT clarified a number of aspects of its procedure. The IPT sat, for the first time, in public. As regards the IPT procedures and the importance of the cases before it, the IPT noted: “10. The challenge to rule 9(6) [requiring oral hearings to be held in private] and to most of the other rules governing the basic procedures of the Tribunal have made this the most significant case ever to come before the Tribunal. The Tribunal are left in no doubt that their rulings on the legal issues formulated by the parties have potentially important consequences for dealing with and determining these and future proceedings and complaints. Counsel and those instructing them were encouraged to argue all the issues in detail, in writing as well as at the oral hearings held over a period of three days in July and August 2002. At the end of September 2002 the written submissions were completed when the parties provided, at the request of the Tribunal, final comments on how the Rules ought, if permissible and appropriate, to be revised and applied by the Tribunal, in the event of a ruling that one or more of the Rules are incompatible with Convention rights and/or ultra vires. ” 89. The IPT concluded (at paragraph 12) that: “ ... (a) the hearing of the preliminary issues should have been conducted in public, and not in private as stated in rule 9(6); (b) the reasons for the legal rulings should be made public; and (c) in all other respects the Rules are valid and binding on the Tribunal and are compatible with Articles 6, 8 and 10 of the Convention.” 90. Specifically on the applicability of Article 6 § 1 to the proceedings before it, the IPT found: “ 85. The conclusion of the Tribunal is that Article 6 applies to a person's claims under section 65(2)(a) and to his complaints under section 65(2)(b) of RIPA, as each of them involves'the determination of his civil rights'by the Tribunal within the meaning of Article 6(1). ” 91. After a review of the Court's case-law on the existence of a “civil right”, the IPT explained the reasons for its conclusions: “ 95. The Tribunal agree with the Respondents that there is a sense in which the claims and complaints brought by virtue of s 65(2) of RIPA fall within the area of public law. They arise out of the alleged exercise of very wide discretionary, investigatory, state powers by public authorities, such as the intelligence and security agencies and the police. They are concerned with matters of national security, of public order, safety and welfare. The function of the Tribunal is to investigate and review the lawfulness of the exercise of such powers. This is no doubt intended to ensure that the authorities comply with their relevant public law duties, such as by obtaining appropriate warrants and authorisations to carry out interception and surveillance. 96. The public law element is reinforced by the directions to the Tribunal in sections 67(2) and 67(3)(c) of RIPA to apply to the determinations the same principles as would be applied by a court in judicial review proceedings. Such proceedings are concerned with the procedural and substantive legality of decisions and actions of public authorities. 97. The fact that activities, such as interception of communications and surveillance, may also impact on the Convention rights of individuals, such as the right to respect for private life and communications in Article 8, does not of itself necessarily mean that the Tribunal make determinations of civil rights ... 98. Further, the power of the Tribunal to make an award of compensation does not necessarily demonstrate that the Tribunal determine civil rights ... 99. Applying the approach in the Strasbourg cases that account should be taken of the content of the rights in question and of the effect of the relevant decision on them ..., the Tribunal conclude that the public law or public order aspects of the claims and complaints to the Tribunal do not predominate and are not decisive of the juristic character of the determinations of the Tribunal. Those determinations have a sufficiently decisive impact on the private law rights of individuals and organisations to attract the application of Article 6. 100. The jurisdiction of the Tribunal is invoked by the initiation of claims and complaints by persons wishing to protect, and to obtain redress for alleged infringements of, their underlying rights of confidentiality and of privacy for person, property and communications. There is a broad measure of protection for such rights in English private law in the torts of trespass to person and property, in the tort of nuisance, in the tort of misfeasance in a public office, in the statutory protection from harassment and in the developing equitable doctrine of breach of confidence ... 101. Since 2 October 2000 there has been added statutory protection for invasion of Article 8 rights by public authorities. This follows from the duties imposed on public authorities by section 6 and the rights conferred on victims by section 7 of the [Human Rights Act]. The concept of'civil rights and obligations'is a fair and reasonable description of those common law and statutory rights and obligations, which form the legal foundation of a person's right to bring claims and make complaints by virtue of section 65. 102. The fact that the alleged infringements of those rights is by public authorities in purported discretionary exercise of administrative investigatory powers does not detract from the'civil'nature of the rights and obligations in issue ... ... 107. For all practical purposes the Tribunal is also the only forum for the effective investigation and determination of complaints and for granting redress for them where appropriate ... 108. In brief, viewing the concept of determination of'civil rights'in the round and in the light of the Strasbourg decisions, the Tribunal conclude that RIPA, which puts all interception, surveillance and similar intelligence gathering powers on a statutory footing, confers, as part of that special framework, additional'civil rights'on persons affected by the unlawful exercise of those powers. It does so by establishing a single specialised Tribunal for the judicial determination and redress of grievances arising from the unlawful use of investigatory powers. ” 92. As to the proper construction of Rule 9 regarding oral hearings, the IPT found: “157. The language of rule 9(2) is clear: ' The Tribunal shall be under no duty to hold oral hearings but may do so in accordance with this rule (and not otherwise).' 158. Oral hearings are in the discretion of the Tribunal. They do not have to hold them, but they may, if they so wish, do so in accordance with Rule 9. 159. In the exercise of their discretion the Tribunal'may hold separate oral hearings.'That exercise of discretion, which would be a departure from normal adversarial procedures, is expressly authorised by rule 9(4). 160. The Tribunal should explain that, contrary to the views apparently held by the Complainants'advisers, the discretion in rule 9(4) neither expressly nor impliedly precludes the Tribunal from exercising their general discretion under rule 9(2) to hold inter partes oral hearings. It is accepted by the Respondents that the Tribunal may, in their discretion, direct joint or collective oral hearings to take place. That discretion was in fact exercised in relation to this very hearing. The exercise of discretion must take into account the relevant provisions of other rules, in particular the Tribunal's general duty under rule 6(1) to prevent the potentially harmful disclosure of sensitive information in the carrying out of their functions. As already explained, this hearing has neither required nor involved the disclosure of any such information or documents emanating from the Complainants, the Respondents or anyone else. The hearing has only been concerned with undiluted legal argument about the procedure of the Tribunal. 161. The Tribunal have reached the conclusion that the absence from the Rules of an absolute right to either an inter partes oral hearing, or, failing that, to a separate oral hearing in every case is within the rule-making power in section 69(1). It is also compatible with the Convention rights under Article 6, 8 and 10. Oral hearings involving evidence or a consideration of the substantive merits of a claim or complaint run the risk of breaching the [neither confirm nor deny] policy or other aspects of national security and the public interest. It is necessary to provide safeguards against that. The conferring of a discretion on the Tribunal to decide when there should be oral hearings and what form they should take is a proportionate response to the need for safeguards, against which the tribunal, as a judicial body, can balance the Complainants'interests in a fair trial and open justice according to the circumstances of the particular case.” 93. Regarding Rule 9(6) which stipulates that oral hearings must be held in private, the IPT held: “ 163. The language of rule 9(6) is clear and unqualified. ' The Tribunal's proceedings, including any oral hearings, shall be conducted in private.' 164. The Tribunal are given no discretion in the matter. Rule 6(2)(a) stiffens the strictness of the rule by providing that the Tribunal may not even disclose to the Complainant or to any other person the fact that the Tribunal have held, or propose to hold, a separate oral hearing under rule 9(4). The fact of an oral hearing is kept private, even from the other party ... ... 167. ... the very fact that this rule is of an absolute blanket nature is, in the judgment of the Tribunal in the circumstances, fatal to its validity ... the Tribunal have concluded that the very width of the rule preventing any hearing of the proceedings in public goes beyond what is authorised by section 69 of RIPA. ... 171. There is no conceivable ground for requiring legal arguments on pure points of procedural law, arising on the interpretation and validity of the Rules, to be held in private ... 172. Indeed, purely legal arguments, conducted for the sole purpose of ascertaining what is the law and not involving the risk of disclosure of any sensitive information, should be heard in public. The public, as well as the parties, has a right to know that there is a dispute about the interpretation and validity of the relevant law and what the rival legal contentions are. 173. The result is that rule 9(6) is ultra vires section 69. It does not bind the Tribunal. The Secretary of State may exercise his discretion under section 69(1) to make fresh rules on the point, but, unless and until he does, the Tribunal may exercise their discretion under section 68(1) to hear the legal arguments in public under rule 9(3), subject to their general and specific duties, such as rule 6(1) in the Rules and in RIPA. It is appropriate to exercise that discretion to direct that the hearing of the preliminary issues shall be treated as if it had taken place under rule 9(3) in public, because such a preliminary hearing of purely legal arguments solely on procedural issues does not pose any risk to the duty of the Tribunal under rule 6(1) or to the maintenance of the [neither confirm nor deny] policy. The transcripts of the hearing should be made available for public consumption. ” 94. Regarding other departures from the normal rules of adversarial procedure as regards the taking of evidence and disclosure in Rule 6, the IPT concluded: “181. ... that these departures from the adversarial model are within the power conferred on the Secretary of State by section 69(1), as limited by section 69(6). A reasonable rule-making body, having regard to the mandatory factors in section 69(6), could properly conclude that these departures were necessary and proportionate for the purposes stated in section 69(6)(b). In the context of the factors set out in that provision and, in particular, the need to maintain the [neither confirm nor deny] policy, the procedures laid down in the Rules provide a'fair trial'within Article 6 for the determination of the civil rights and obligations arising in claims and complaints under section 65 of RIPA. 182. They are also compatible with Convention rights in Articles 8 and 10, taking account of the exceptions for the public interest and national security in Articles 8(2) and 10(2), in particular the effective operation of the legitimate policy of [neither confirm nor deny] in relation to the use of investigatory powers. The disclosure of information is not an absolute right where there are competing interests, such as national security considerations, and it may be necessary to withhold information for that reason, provided that, as in the kind of cases coming before this Tribunal, it is strictly necessary to do so and the restriction is counterbalanced by judicial procedures which protect the interests of the Complainants ... ” 95. Finally, as regards the absence of reasons following a decision that the complaint is unsuccessful, the IPT noted: “ 190. The Tribunal conclude that, properly interpreted in context on ordinary principles of domestic law, rule 13 and section 68(4) of RIPA do not apply to prevent publication of the reasons for the rulings of the Tribunal on the preliminary issues on matters of procedural law, as they are not a'determination'of the proceedings brought before them or of the complaint made to them within the meaning of those provisions. Those provisions concern decisions of the Tribunal which bring the claim or complaint to an end, either by a determination of the substantive claim or complaint on its merits ... 191. ... In the circumstances there can be publication of the reasons for legal rulings on preliminary issues, but, so far as determinations are concerned, the Tribunal are satisfied that section 68(4) and rule 13 are valid and binding and that the distinction between information given to the successful complainants and that given to unsuccessful complainants (where the [neither confirm nor deny] policy must be preserved) is necessary and justifiable. ” 96. In a second ruling on preliminary issues of law in the British - Irish Rights Watch and others case, which involved external communications (i.e. communications between the United Kingdom and abroad), the IPT issued its findings on the complaint in that case. The issue for consideration was identified as: “3. ... whether ...'the process of filtering intercepted telephone calls made from the UK to overseas telephones ... breaches Article 8(2) [of the European Convention on Human Rights] because it is not'in accordance with the law'... ” 97. Given that the challenge in the case related solely to the lawfulness of the filtering process as set out in the RIPA legislation, the IPT issued a public ruling which explained the reasons for its findings in the case. In its ruling, it examined the relevant legislative provisions and concluded that they were sufficiently accessible and foreseeable to be in accordance with the law. 98. As the applicant's case demonstrates, once general legal issues have been determined, if the IPT is required to consider the specific facts of the case, and in particular whether interception has taken place, any such consideration will take place in private. Rule 6 prevents the applicant participating in this stage of proceedings. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 99. The applicant complained that his communications were being unlawfully intercepted in order to intimidate him and undermine his business activities, in violation of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 100. He further argued that the regime established under RIPA for authorising interception of internal communications did not comply with the requirements of Article 8 § 2 of the Convention. A. Admissibility 1. The parties'submissions a. The Government 101. The Government argued that the applicant had failed to advance a general challenge to the Convention - compliance of the RIPA provisions on interception of internal communications before the IPT, and that he had accordingly failed to exhaust domestic remedies in respect of this complaint. They pointed out that at the same time as the applicant was pursuing his complaint with the IPT, the British-Irish Rights Watch and others case was also under consideration by the IPT. Pursuant to the arguments of the parties in that case, the IPT issued a general public ruling of the IPT on the compatibility of the RIPA scheme as regards external communications with Article 8 (see paragraphs 96 to 97 above). No such ruling on the subject of internal communications was issued in the applicant's case. 102. The Government emphasised that the applicant's Grounds of Claim and Complaint alleged interception of the applicant's business calls and a violation of Article 8 on the facts of the applicant's case. The Government noted that the paragraphs of the Grounds of Claim and Complaint relied upon by the applicant in his submissions to this Court to support his allegation that a general complaint was advanced were misleading. It was clear from the description of his complaint and the subsequent paragraphs particularising his claim that the reference to interception was to an alleged interception in his case, and not to interception in general, and that the complaint that the interception was not in accordance with the law related to an alleged breach of the Data Protection Act, and not to any alleged inadequacies of the RIPA regime (see paragraphs 12 and 14 above ). 103. The Government submitted that Article 35 § 1 had a special significance in the context of secret surveillance, as the IPT was specifically designed to be able to consider and investigate closed materials. It had extensive powers to call for evidence from the intercepting agencies and could request assistance from the Commissioner, who had detailed working knowledge and practice of the section 8(1) warrant regime. 104. As regards the applicant's specific complaint that his communications had been unlawfully intercepted, the Government contended that the complaint was manifestly ill-founded as the applicant had failed to show that there had been an interference for the purposes of Article 8. In their submission, he had not established a reasonable likelihood, as required by the Court's case-law, that his communications had been intercepted. 105. The Government accordingly invited the Court to find both the general and the specific complaints under Article 8 inadmissible. b. The applicant 106. The applicant refuted the suggestion that his complaint before the IPT had failed to challenge the Convention-compatibility of the RIPA regime on internal communications and that he had, therefore, failed to exhaust domestic remedies in this regard. He pointed out that one of the express grounds of his complaint to the IPT had been that “the interception and processing ha[d] at no time been in accordance with the law as required by Article 8(2)” (see paragraph 13 above). He argued that his assertion before the IPT was that any warrants issued or renewed under RIPA violated Article 8. 107. The applicant further disputed that there had been no interference in his case, maintaining that he had established a reasonable likelihood that interception had taken place and that, in any event, the mere existence of RIPA was sufficient to show an interference. 2. The Court's assessment 108. As regards the Government's objection that the applicant failed to exhaust domestic remedies, the Court considers that the summary of the applicant's case set out by the IPT in its ruling of 9 January 2004 (see paragraph 17 above) as well as the Grounds of Claim and Complaint themselves (see paragraphs 10 to 15 above) support the Government's contention that the applicant's complaint concerned only the specific allegation that his communications were actually being intercepted. Further, it can be inferred from the fact that the IPT issued a general public ruling on the compliance of the RIPA provisions on external communications with Article 8 in the British-Irish Rights Watch and others case (see paragraphs 96 to 97 above) that, had a similar argument in respect of internal communications been advanced by the applicant, a similar public ruling would have been issued in his case. No such ruling was handed down. The Court therefore concludes that the applicant failed to raise his arguments as regards the overall Convention-compatibility of the RIPA provisions before the IPT. 109. However, the Court recalls that where the Government claims non-exhaustion they must satisfy the Court that the remedy proposed was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV; and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II). While the Government rely on the British-Irish Rights Watch and others case to demonstrate that the IPT could have issued a general ruling on compatibility, they do not address in their submissions to the Court what benefit, if any, is gained from such a general ruling. The Court recalls that it is in principle appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention in order that the Court can have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008 ‑ ...; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 154, ECHR 2009 ‑ ... .). However, it is important to note in this case that the applicant's challenge to the RIPA provisions is a challenge to primary legislation. If the applicant had made a general complaint to the IPT, and if that complaint been upheld, the tribunal did not have the power to annul any of the RIPA provisions or to find any interception arising under RIPA to be unlawful as a result of the incompatibility of the provisions themselves with the Convention (see paragraph 24 above). No submissions have been made to the Court as to whether the IPT is competent to make a declaration of incompatibility under section 4(2) of the Human Rights Act. However, it would appear from the wording of that provision that it is not. In any event, the practice of giving effect to the national courts'declarations of incompatibility by amendment of offending legislation is not yet sufficiently certain as to indicate that section 4 of the Human Rights Act is to be interpreted as imposing a binding obligation giving rise to a remedy which an applicant is required to exhaust (see Burden v. the United Kingdom, cited above, §§ 43 to 44). Accordingly, the Court considers that the applicant was not required to advance his complaint regarding the general compliance of the RIPA regime for internal communications with Article 8 § 2 before the IPT in order to satisfy the requirement under Article 35 § 1 that he exhaust domestic remedies. 110. The Court takes note of the Government's argument that Article 35 § 1 has a special significance in the context of secret surveillance given the extensive powers of the IPT to investigate complaints before it and to access confidential information. While the extensive powers of the IPT are relevant where the tribunal is examining a specific complaint of interception in an individual case and it is necessary to investigate the factual background, their relevance to a legal complaint regarding the operation of the legislative regime is less clear. In keeping with its obligations under RIPA and the Rules (see paragraphs 83 to 84 above), the IPT is not able to disclose information to an extent, or in a manner, contrary to the public interest or prejudicial to national security or the prevention or detection of serious crime. Accordingly, it is unlikely that any further elucidation of the general operation of the interception regime and applicable safeguards, such as would assist the Court in its consideration of the compliance with the regime with the Convention, would result from a general challenge before the IPT. 111. As regards the Government's second objection that there has been no interference in the applicant's case, the Court considers that this raises serious questions of fact and of law which cannot be settled at this stage of the examination of the application but require an examination of the merits of the complaint. 112. In conclusion, the applicant's complaint under Articles 8 cannot be rejected for non-exhaustion of domestic remedies under Article 35 § 1 or as manifestly ill-founded within the meaning of Article 35 § 3. The Court notes, in addition, that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The existence of an “interference” a. The parties'submissions i. The applicant 113. The applicant insisted that his communications had been intercepted. He maintained that there were reasonable grounds for believing that he had been subject to interception and submitted that objectively verifiable facts supported the possibility of interception, pointing to his long campaign regarding the alleged miscarriage of justice in his case and the allegation of police impropriety made at his re-trial. 114. Noting the Government's submission that neither preventing calls from being put through nor hoax calls amounted to interception for the purposes of RIPA, the applicant emphasised that such conduct clearly amounted to an interference for the purposes of Article 8 of the Convention. In the event that RIPA did not apply to such measures, he argued that the Government had failed to indicate the alternative legal regime put in place to prevent such interference with individuals'private lives as required by the positive obligations under Article 8. 115. Finally, and in any event, relying on Weber and Saravia v. Germany (dec.), no. 54934/00, § 78, ECHR 2006 ‑ XI, the applicant contended that he was not required to demonstrate that the impugned measures had actually been applied to him in order to establish an interference with his private life. He invited the Court to follow its judgment in Liberty and Others v. the United Kingdom, no. 58243/00, §§ 56 to 57, 1 July 2008, and find that the mere existence of a regime for surveillance measures entailed a threat of surveillance for all those to whom the legislation could be applied. ii. The Government 116. The Government accepted that if the applicant's complaint regarding the general Convention-compatibility of the RIPA scheme was admissible, then he could claim to be a victim without having to show that he had actually been the subject of interception, However, they argued that the Court had made it clear that, in a case argued on the basis that the intelligence authorities had in fact been engaging in unlawful surveillance, the principles set out in §§ 34 to 38 of the Court's judgment in Klass and Others v. Germany, 6 September 1978, Series A no. 28 did not apply and, instead, the applicant was required to substantiate his claim with evidence sufficient to satisfy the Court that there was a reasonable likelihood that unlawful interception had occurred (citing Halford v. the United Kingdom, 25 June 1997, § 57, Reports 1997 ‑ III; and Iliya Stefanov v. Bulgaria, no. 65755/01, § 49, 22 May 2008 ). In their view, the applicant had not established a reasonable likelihood of unlawful interception in his case, for four reasons: (i) there was no evidence to support a claim that the applicant's communications were being intercepted; (ii) the Government emphatically denied that any unlawful interception had taken place; (iii) the rejection of the applicant's complaint by the IPT supported this position (see paragraph 20 above); and (iv) the Commissioner's 2001 report also supported this position (see paragraph 65 above). 117. The Government further argued that complaints regarding calls not being put through or hoax calls did not show that there had been any interception in the applicant's case. They pointed out that, under section 2(2) RIPA, preventing calls from being put through and hoax calls were excluded from the definition of interception (see paragraph 30 above). As such, these activities would not fall within the remit of RIPA. The Government further argued that there was no factual foundation for the applicant's claims that any interception was intended to intimidate him. b. The Court's assessment 118. It is not disputed that mail, telephone and email communications, including those made in the context of business dealings, are covered by the notions of “private life” and “correspondence” in Article 8 § 1. 119. The Court has consistently held in its case-law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, inter alia, Klass and Others, cited above, § 33; N. C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006 ). However, in recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them, the Court has permitted general challenges to the relevant legislative regime. 120. The Court's approach to assessing whether there has been an interference in cases raising a general complaint about secret surveillance measures was set out in its Klass and Others judgment, cited above, §§ 34 to 38 and 4 1: “ 34. ... The question arises in the present proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court's view, the effectiveness (l'effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention's enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious. The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures. 35. In the light of these considerations, it has now to be ascertained whether, by reason of the particular legislation being challenged, the applicants can claim to be victims ... of a violation of Article 8 ... of the Convention ... 36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 ... could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8 ..., or even to be deprived of the right granted by that Article ..., without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions. ... The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 ..., since otherwise Article 8 ... runs the risk of being nullified. 37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court's judgment ... To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8 ... ... 38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to'(claim) to be the victim of a violation'of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance ... ... 41. The first matter to be decided is whether and, if so, in what respect the contested legislation, in permitting the above-mentioned measures of surveillance, constitutes an interference with the exercise of the right guaranteed to the applicants under Article 8 para. 1 .... ... In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 .... Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual's right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an'interference by a public authority'with the exercise of the applicants'right to respect for private and family life and for correspondence. ” 121. Subsequently, in Malone v. the United Kingdom, 2 August 1984, § 64, Series A no. 82, the Court noted: “ Despite the applicant's allegations, the Government have consistently declined to disclose to what extent, if at all, his telephone calls and mail have been intercepted otherwise on behalf of the police ... They did, however, concede that, as a suspected receiver of stolen goods, he was a member of a class of persons against whom measures of postal and telephone interception were liable to be employed. As the Commission pointed out in its report ..., the existence in England and Wales of laws and practices which permit and establish a system for effecting secret surveillance of communications amounted in itself to an'interference ... with the exercise'of the applicant's rights under Article 8 ..., apart from any measures actually taken against him (see the above-mentioned Klass and Others judgment, ibid.). This being so, the Court, like the Commission ..., does not consider it necessary to inquire into the applicant's further claims that both his mail and his telephone calls were intercepted for a number of years. ” 122. Following Klass and Others and Malone, the former Commission, in a number of cases against the United Kingdom in which the applicants alleged actual interception of their communications, emphasised that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the United Kingdom who feared that the security services may have conducted surveillance of him. Accordingly, the Commission required applicants to demonstrate that there was a “reasonable likelihood” that the measures had been applied to them (see, for example, Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993; Redgrave v. the United Kingdom, no. 202711/92, Commission decision of 1 September 1993; and Matthews v. the United Kingdom, no. 28576/95, Commission decision of 16 October 1996 ). 123. In cases concerning general complaints about legislation and practice permitting secret surveillance measures, the Court has reiterated the Klass and Others approach on a number of occasions (see, inter alia, Weber and Saravia, cited above, § 78; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § § 58 to 60, 28 June 2007; Iliya Stefanov, cited above, § 49; Liberty and Others, cited above, §§ 56 to 57; and Iordachi and Others v. Moldova, no. 25198/02, § § 30 to 35, 10 February 2009 ). Where actual interception was alleged, the Court has held that in order for there to be an interference, it has to be satisfied that there was a reasonable likelihood that surveillance measures were applied to the applicant (see Halford, cited above, §§ 56 to 57). The Court will make its assessment in light of all the circumstances of the case and will not limit its review to the existence of direct proof that surveillance has taken place given that such proof is generally difficult or impossible to obtain (see Iliya Stefanov, cited above, § 50). 124. Sight should not be lost of the special reasons justifying the Court's departure, in cases concerning secret measures, from its general approach which denies individuals the right to challenge a law in abstracto. The principal reason was to ensure that the secrecy of such measures did not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and the Court (see Klass and Others, cited above, §§ 34 and 36). In order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by this Court. 125. The Court observes that the present applicant complained of an interference with his communications both on the basis that, given the circumstances of his particular case, he had established a reasonable likelihood of interception and on the basis of the very existence of measures permitting secret surveillance. 126. The applicant has alleged that the fact that calls were not put through to him and that he received hoax calls demonstrates a reasonable likelihood that his communications are being intercepted. The Court disagrees that such allegations are sufficient to support the applicant's contention that his communications have been intercepted. Accordingly, it concludes that the applicant has failed to demonstrate a reasonable likelihood that there was actual interception in his case. 127. Insofar as the applicant complains about the RIPA regime itself, the Court observes, first, that the RIPA provisions allow any individual who alleges interception of his communications to lodge a complaint with an independent tribunal (see paragraph 75 above), a possibility which was taken up by the applicant. The IPT concluded that no unlawful, within the meaning of RIPA, interception had taken place. 128. As to whether a particular risk of surveillance arises in the applicant's case, the Court notes that under the provisions of RIPA on internal communications, any person within the United Kingdom may have his communications intercepted if interception is deemed necessary on one or more of the grounds listed in section 5(3) (see paragraphs 31 to 32 above). The applicant has alleged that he is at particular risk of having his communications intercepted as a result of his high-profile murder case, in which he made allegations of police impropriety (see paragraph 5 above), and his subsequent campaigning against miscarriages of justice. The Court observes that neither of these reasons would appear to fall within the grounds listed in section 5(3) RIPA. However, in light of the applicant's allegations that any interception is taking place without lawful basis in order to intimidate him (see paragraph 7 above), the Court considers that it cannot be excluded that secret surveillance measures were applied to him or that he was, at the material time, potentially at risk of being subjected to such measures. 129. In the circumstances, the Court considers that the applicant can complain of an interference with his Article 8 rights. The Government's objection concerning the applicant's lack of victim status is accordingly dismissed. 2. The justification for the interference 130. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one of more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim. a. The parties'submissions i. The applicant 131. The applicant did not dispute that the surveillance of internal communications in the United Kingdom had a basis in domestic law, namely the provisions of RIPA. Nor did he dispute that both the relevant legislation and the Code were publicly available. However, he argued that the RIPA provisions, and in particular sections 5, 8 and 15 on the issuing of warrants and the relevant safeguards, were not in accordance with the law as required by Article 8 § 2 of the Convention as they did not meet the foreseeability requirement set out in the Court's jurisprudence. In particular, he alleged that section 8(1) RIPA, which stipulated the basic contents of an interception warrant, did not indicate with sufficient clarity how decisions as to which individuals were to be put under surveillance were made; that RIPA did not define the categories of persons who could have their telephones tapped; and that it did not clarify the procedures in place to regulate the interception and processing of intercept material. He contended that the safeguards referred to in section 15 RIPA were inadequate as they were subject to unknown “arrangements” considered necessary by the Secretary of State. The other procedural safeguards in place including the possibility of launching proceedings before the IPT, were, in the applicant's view, also inadequate to protect against abuse. 132. The applicant relied on the Court's judgment in Liberty and Others, cited above, as to the lack of clarity of the relevant provisions of RIPA's predecessor, the Interception of Communications Act 1985, and argued that the changes introduced to the surveillance regime by RIPA were inadequate to address the flaws identified in that case. He concluded that any interference therefore automatically failed to meet the requirement that it must be in accordance with the law and relied in this regard on the conclusions of a report by a surveillance law expert instructed by him, Dr Goold, appended to his submissions. He further highlighted the conclusion of the Court in Liberty and Others, cited above, § 68, that the fact that extracts of the code of practice adopted under section 71 RIPA were in the public domain suggested that it was possible for a State to make public certain details about the operation of a scheme for external surveillance without compromising national security. 133. The applicant argued that the Court's decisions in Valenzuela Contreras v. Spain, 30 July 1998, Reports of Judgments and Decisions 1998 ‑ V; Huvig v. France, 24 April 1990, Series A no. 176 ‑ B; Kruslin v. France, 24 April 1990, Series A no. 176 ‑ A; Amann v. Switzerland [GC], no. 27798/95, ECHR 2000 ‑ II; Al-Nashif v. Bulgaria, no. 50963/99, 20 June 2002; and Rotaru v. Romania [GC], no. 28341/95, ECHR 2000 ‑ V had expanded on the issue of “ foreseeability ” and indicated a departure from the narrower scope of earlier decisions which tolerated the restrictive extent to which national security had imposed blanket secrecy on the publication of surveillance procedures. This broader approach had been confirmed by the Court's recent ruling in Liberty and Others, cited above. The applicant argued that the RIPA scheme remained “unnecessarily opaque” and that further details about the operation, beyond those currently included in the Code, should be made available in order to comply with the Convention requirements regarding clarity and precision. 134. As to the safeguards and the arrangements put in place by the Secretary of State under section 15 RIPA, the applicant contended that there was a circularity in the fact that the person responsible for issuing warrants was also responsible for the establishment of the safeguards. He referred to the Court's observation in Liberty and Others, cited above, § 66, that details of the arrangements were neither in the legislation nor otherwise in the public domain. As regards the role of the Commissioner, the applicant argued that, as the Court found in Liberty and Others, cited above, § 67, the existence of the Commissioner did not contribute towards the accessibility and clarity of the arrangements under section 15 RIPA as he was unable to reveal what the arrangements were. 135. More generally, the applicant alleged that the Government had failed to address properly the safeguards available to prevent abuse of power. He argued that the legislation failed to identify the nature of the offences which could give rise to an interception order, to define persons liable to have their telephones tapped, to set limits on the duration of telephone tapping and to explain the procedure to be followed in examining and storing data obtained, the precautions to be taken in communicating the data and the circumstances in which data could or should be destroyed (citing Weber and Saravia, cited above, § 95). 136. He argued in particular that in Weber and Saravia, the law under consideration set out the precise offences the prevention and detection of which could give rise to an interception order, which he alleged was not the case with RIPA. He pointed to the opinion of his expert, Dr Goold, that the definition of “serious crime” in section 81(2)(b) RIPA (see paragraph 34 above) was excessively broad and did not refer to any specific offences by name, and Dr Goold's conclusion that it could not be said that the grounds for issuing a section 8(1) warrant, as set out in section 5(3) RIPA, were sufficiently clear so as to enable an individual to predict what sorts of conduct might give rise to secret surveillance. He further considered that there was no information as to how the categories of persons liable to have their telephones tapped were “strictly controlled”, as the Government suggested (see paragraph 142 below). ii. The Government 137. The Government submitted that any interference which may have arisen in the present case satisfied the requirements of Article 8 § 2. The Government emphasised the duty of democratic governments to uphold the criminal law and protect citizens from terrorist threats and organised crime. In order to discharge this duty, the power to intercept the communications of specific targets was necessary. They pointed to the Commissioner's consistent conclusions that the interception powers under RIPA were an invaluable weapon for the protection of national security and the fight against organised crime ( see paragraphs 64 and 72 above). Further, in order for interception to yield useful intelligence, the fact of the interception, as well as the methods by which it could be effected, had to be kept secret. If possible targets were able to gain insight into sensitive interception techniques and capabilities, then they would be able to take steps to undermine the usefulness of any intelligence gathered against them. The Government explained that they had had experience of information about surveillance techniques being put in the public domain, which had led directly to the loss of important sources of intelligence. They insisted that their policy of “neither confirm nor deny” was important to ensure the overall effectiveness of surveillance operations. 138. Generally, regarding the applicant's reliance on the Court's judgment in Liberty and Others, cited above, the Government emphasised that that case concerned the Interception of Communications Act 1985, and not RIPA. Accordingly, they argued, the Court had not given a view as to whether it considered that the provisions of RIPA satisfied the requirements of Article 8. In finding a violation of Article 8 in Liberty and Others as a result of the failure of the Government to provide any public indication of the procedure for selecting for examination, sharing, storing and destroying intercepted data, the Court referred specifically at § 68 of its judgment to the fact that under RIPA, the Government had published a code of practice giving details about the operation of the scheme. In the Government's view, the publication of the Code was a feature by which the RIPA scheme could be distinguished from its predecessor in a significant and relevant respect. They also contrasted the finding of the Court in Liberty and Others, § 66, as regards the former arrangements regarding safeguards under section 6 Interception of Communications Act with the section 15 RIPA arrangements and the relevant provisions of the Code. 139. On the question whether any interference was in accordance with the law, the Government considered, first, that the statutory provisions of RIPA provided a sufficient basis in domestic law for any interference. They noted that the applicant did not appear to dispute this. As to whether the law was accessible, the Government pointed out that both RIPA and the Code were public accessible. They concluded that the accessibility requirement was satisfied, again noting the absence of any dispute on the matter from the applicant. 140. Regarding foreseeability, the Government highlighted at the outset the special context of secret surveillance. Referring to, inter alia, Weber and Saravia, cited above, § 93, the Government emphasised that foreseeability could not mean that an individual should be able to foresee when the authorities were likely to intercept his communications so that he could adapt his conduct accordingly. However, they agreed that there needed to be clear, detailed rules on interception, as outlined in § 95 of the Court's judgment in Weber and Saravia to guard against the risk of arbitrary exercise of secret surveillance powers. The Court had recently clarified in Liberty and Others, cited above, §§ 67 to 69, that not every provision regulating secret surveillance had to be set out in primary legislation. The test was whether there was a sufficient indication of the safeguards in a form accessible to the public in order to avoid abuses of power (citing Weber and Saravia, § 95). The Government accordingly contended that account should be taken of all relevant circumstances, including the nature, scope and duration of possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the remedies provided by national law (citing Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, cited above, § 77). They also argued that the Court should consider any evidence as to the actual operation of the warrant system and whether the system appeared to be working properly or was in fact subject to abuse ( referring to Association for European Integration and Human Rights and Ekimdzhiev, §§ 92 to 93). 141. Addressing each of the individual safeguards set out in Weber and Saravia in turn, the Government contended, first, as regards the nature of offences which could give rise to an interception order, that section 5(3) RIPA, supplemented by the Code and the relevant definitions provided in the Act, was sufficiently clear and precise in setting out the grounds on which a section 8(1) warrant could be issued. As to the applicant's particular complaint that the term “national security” lacked clarity, the Government emphasised that the term was not criticised by the Court in Liberty and Others when it was considered in the context of RIPA's predecessor, a fact which was unsurprising given that the term was a frequently-used legislative concept in the legal systems of many Contracting States and appeared in Article 8 § 2 of the Convention itself. The Government invited the Court to follow the Commission in Christie v. the United Kingdom, no. 21482/93, Commission decision of 27 June 1994, in finding that the term “national security” was sufficiently foreseeable for the purposes of Article 8, noting that the applicant had cited no authority to the contrary. The Government also contested the applicant's complaint that “serious crime” was not sufficiently specific and that RIPA failed to clarify the exact offences for the prevention of which a section 8(1) warrant could be issued. They pointed out that nothing in Weber and Saravia, cited above, § 27, supported the proposition that the legislative framework had to refer to the relevant offences by name in order to comply with the foreseeability requirement. They concluded that “serious crime”, as defined in the Act, provided an adequate indication of the circumstances in which interception could be authorised. 142. Second, as regards the categories of persons liable to have their telephones tapped, the Government acknowledged that RIPA allowed any type of communication transmitted over a telecommunications system to be intercepted. However, the categories of persons liable to have their telephones tapped were strictly controlled by RIPA. The factors by reference to which interception was undertaken had to be specifically identified in the schedule to the warrant. Further, a person would only become a subject of interception, and a set of premises would only be named in an interception warrant, if the interception operation was necessary on one or more of the grounds listed in section 5(3) (see paragraphs 31 to 32 above). The Government disputed that the Court's conclusion in Weber and Saravia, cited above, § 97, was at odds with this approach as, in their submission, that judgment merely approved the approach taken in the G10 Act without ruling out other possible methods of satisfying the Article 8 § 2 requirements. 143. Third, RIPA set out strict limits regarding the duration of any interception activity and the circumstances in which a warrant could be renewed (see paragraphs 50 to 51 above). 144. Fourth, RIPA, supplemented by the Code, contained detailed provisions on the procedure to be followed for examining, using and storing the data obtained and the precautions to be taken when communicating the data to other parties. Although in principle an intercepting agency could listen to all intercepted material in order to determine whether it contained valuable intelligence, where it contained no such intelligence the material would be swiftly and securely destroyed. Section 15 RIPA provided an exhaustive definition of the “authorised purposes” and, in particular, section 15(4) identified limits on the number of persons to whom intercept material could be disclosed (see paragraph 42 above). These provisions were supplemented by the provisions of chapter 6 of the Code (see paragraphs 45 to 47 above). In particular, paragraph 6.4 of the Code specified that disclosure could only be made to persons with security clearance and paragraph 6.9 provided for distribution lists of vetted persons to be maintained. Disclosure was further limited by the “ need - to - know ” principle, which restricted both those who could gain access to intercept material and the extent of any such access. Paragraph 6.5 of the Code clarified that the obligation not to disclose intercept information applied to any person to whom such information had been disclosed. Any breach of these safeguards was an offence under section 19 RIPA (see paragraph 44 above). The requirement to keep records in respect of the making, distribution and destruction of intercept material also provided an important safeguard. Section 15(3) made it clear that intercept material had to be destroyed as soon as there were no longer grounds for retaining it as “necessary” for any of the exhaustively defined authorised purposes. Where human or technical error had resulted in material being gathered where it should not have been, the intercept material was immediately destroyed. Finally, where intercept material was retained, paragraph 6.8 of the Code required it to be reviewed at appropriate intervals to ensure that the justification for its retention remained valid. 145. The Government emphasised that information concerning the arrangements put in place under section 15 RIPA had been published in the Code. However, in order to maintain the operational effectiveness of interception techniques, it was not possible to publish full details of the arrangements. In the view of the Government, the publication of any more detail than had already been published would be contrary to national security and prejudicial to the prevention and detection of serious crime. They argued that the decision as to how much information on safeguards could safely be put in the public domain without undermining the interests of national security or prejudicing the prevention and detection of serious crime fell within their margin of appreciation. It was also significant that the full details of the arrangements in place were made available to the Commissioner, who was required to keep them under review. The Government emphasised that the Commissioner's approval was sought and given in respect of the safeguard documents either before or shortly after the entry into force of RIPA (see paragraph 63 above). They further emphasised that the Commissioner had expressed his satisfaction with the section 15 safeguards in every report prepared since 2000. They referred in particular to the Commissioner's 200 2 and 2004 reports (see paragraphs 68 to 69 above). 146. In conclusion, the Government contended that in light of the detail in the legislation and the applicable code, the RIPA regime satisfied the requirement of lawfulness. 147. The Government also insisted that any interference pursued a legitimate aim. The Government emphatically denied, in this regard, the applicant's allegation that interception was being used to intimidate him and undermine his business activities. The three relevant objectives set out in section 5(3) RIPA, namely safeguarding national security, preventing or detecting serious crime and safeguarding the economic well-being of the United Kingdom, were all legitimate aims for the purposes of Article 8(2). 148. As to proportionality, the Government pointed to the fact that the Court had already accepted that secret surveillance could be necessary in a democratic society ( see Klass and Others, cited above, § 48) and argued that the surveillance regime in RIPA was necessary and proportionate. The Government further argued that States enjoyed a fairly wide margin of appreciation when legislating in this field (citing Weber and Saravia, § 106). They reiterated that the protection of national security in particular was a heavy political responsibility affecting the whole population. Decisions in this area accordingly required a democratic legitimacy which could not be provided by the Court. This had been implicitly recognised by the Court in its Klass and Others judgment, cited above, § 49. 149. The Government accepted that in order to demonstrate respect for Article 8(2), there had to be adequate and effective guarantees against abuse of power. They reiterated that the assessment of whether such guarantees were present had to be made in light of all the circumstances of the case. In respect of the surveillance regime applicable in the United Kingdom, the Government emphasised that any interception without lawful authority was a criminal offence under section 1 RIPA (see paragraph 29 above); that the Secretary of State personally issued and modified warrants (see paragraph 38 above); and that guidance was publicly available in the form of the Code. They further pointed to the additional safeguards available in the form of the section 15 safeguards, the oversight of the Commissioner and the jurisdiction of the IPT. They concluded that the RIPA regime contained adequate and effective guarantees against abuse. The involvement of Secretaries of State in the issuing of an interception warrant provided a real and practical safeguard in the system, as demonstrated by the findings of the Commissioner as to the care and attention they demonstrated in their warrantry work (see paragraphs 62, 67 and 71 above). Further, it was significant that none of the Commissioners'reports referred to any deliberate breach of the RIPA provisions or any unlawful use of interception powers to intimidate a person. Any errors or breaches which had arisen had been the result of technical or human error and had been promptly corrected upon their discovery. As to the jurisdiction of the IPT, the Government emphasised that a challenge could be brought at any time by a person who suspected that his communications were being intercepted. They contrasted this unlimited jurisdiction with the legal regime at issue in Weber and Saravia where judicial oversight was limited to cases where an individual had been notified that measures had been taken against him. The applicant in the present case was able to bring his complaint before two senior judges, who ruled that there was no unlawful interception in his case. 150. In conclusion, the Government invited the Court to find that there had been no violation of Article 8 in the present case. b. The Court's assessment i. General principles 151. The requirement that any interference must be “in accordance with the law” under Article 8 § 2 will only be met where three conditions are satisfied. First, the impugned measure must have some basis in domestic law. Second, the domestic law must be compatible with the rule of law and accessible to the person concerned. Third, the person affected must be able to foresee the consequences of the domestic law for him (see, among many other authorities, Rotaru v. Romania, cited above, § 52; Liberty and Others, cited above, § 59; and Iordachi and Others, cited above, § 37 ). 152. The Court has held on several occasions that the reference to “foreseeability” in the context of interception of communications cannot be the same as in many other fields (see Malone, cited above, § 67; Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Association for European Integration, cited above, § 79; and Al-Nashif, cited above, § 121). In its admissibility decision in Weber and Saravia, cited above, §§ 93 to 95, the Court summarised its case-law on the requirement of legal “foreseeability” in this field: “93.. .. foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly (see, inter alia, Leander [ v. Sweden, judgment of 26 August 1987, Series A no. 116], p. 23, § 51). However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident (see, inter alia, Malone, cited above, p. 32, § 67; Huvig, cited above, pp. 54-55, § 29; and Rotaru ). It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated (see Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II, pp. 542-43, § 72, and Valenzuela Contreras v. Spain, judgment of 30 July 1998, Reports 1998-V, pp. 1924-25, § 46). The domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Malone, ibid.; Kopp, cited above, p. 541, § 64; Huvig, cited above, pp. 54-55, § 29; and Valenzuela Contreras, ibid.). 94. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, pp. 32-33, § 68; Leander, cited above, p. 23, § 51; and Huvig, cited above, pp. 54-55, § 29). 95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above, p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, pp. 1924 ‑ 25, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).” 153. As to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court recalls that powers to instruct secret surveillance of citizens are only tolerated under Article 8 to the extent that they are strictly necessary for safeguarding democratic institutions. In practice, this means that there must be adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law (see Klass and Others, cited above, §§ 49 to 50; and Weber and Saravia, cited above, § 106). 154. The Court has acknowledged that the Contracting States enjoy a certain margin of appreciation in assessing the existence and extent of such necessity, but this margin is subject to European supervision. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society”. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded (see Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009 ). ii. Application of the general principles to the facts of the case 155. The Court recalls that it has found there to be an interference under Article 8 § 1 in respect of the applicant's general complaint about the RIPA provisions and not in respect of any actual interception activity allegedly taking place. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine the proportionality of the RIPA legislation itself and the safeguards built into the system allowing for secret surveillance, rather than the proportionality of any specific measures taken in respect of the applicant. In the circumstances, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with in respect of the RIPA regime and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements (see Kvasnica, cited above, § 84). Further, the Court considers it clear that the surveillance measures permitted by RIPA pursue the legitimate aims of the protection of national security, the prevention of crime and the protection of the economic well-being of the country. This was not disputed by the parties. 156. In order to assess whether the RIPA provisions meet the foreseeability requirement, the Court must first examine whether the provisions of the Code can be taken into account insofar as they supplement and further explain the relevant legislative provisions. In this regard, the Court refers to its finding in Silver and Others v. the United Kingdom, 25 March 1983, § § 88 to 89, Series A no. 61 that administrative orders and instructions concerning the scheme for screening prisoners'letters established a practice which had to be followed save in exceptional circumstances and that, as a consequence, although they did not themselves have the force of law, to the extent to which those concerned were made sufficiently aware of their contents they could be taken into account in assessing whether the criterion of foreseeability was satisfied in the application of the Prison Rules. 157. In the present case, the Court notes, first, that the Code is a public document and is available on the Internet (see paragraphs 26 and 28 above). Prior to its entry into force, it was laid before Parliament and approved by both Houses (see paragraph 26 above). Those exercising duties relating to interception of communications must have regard to its provisions and the provisions of the Code may be taken into account by courts and tribunals (see paragraph 27 above). In light of these considerations, the Court finds that the provisions of the Code can be taken into account in assessing the foreseeability of the RIPA regime. 158. The Court will therefore examine the RIPA regime with reference to each of the safeguards and the guarantees against abuse outlined in Weber and Saravia (see paragraphs 152 and 153 above) and, where relevant, to its findings in respect of the previous legislation at issue in Liberty and Others, cited above. 159. As to the nature of the offences, the Court emphasises that the condition of foreseeability does not require States to set out exhaustively by name the specific offences which may give rise to interception. However, sufficient detail should be provided of the nature of the offences in question. In the case of RIPA, section 5 provides that interception can only take place where the Secretary of State believes that it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime or for the purposes of safeguarding the economic well-being of the United Kingdom (see paragraphs 31 to 32 above). The applicant criticises the terms “national security” and “serious crime” as being insufficiently clear. The Court disagrees. It observes that the term “national security” is frequently employed in both national and international legislation and constitutes one of the legitimate aims to which Article 8 § 2 itself refers. The Court has previously emphasised that the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to deport an individual on “ national security ” grounds. By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance ( Al- Nashif, cited above, § 121). Similar considerations apply to the use of the term in the context of secret surveillance. Further, additional clarification of how the term is to be applied in practice in the United Kingdom has been provided by the Commissioner, who has indicated that it allows surveillance of activities which threaten the safety or well-being of the State and activities which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means (see paragraph 33 above). As for “ serious crime”, this is defined in the interpretative provisions of the Act itself and what is meant by “detecting” serious crime is also explained in the Act (see paragraphs 34 to 35 above). The Court is of the view that the reference to serious crime, together with the interpretative clarifications in the Act, gives citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to secret surveillance measures. The Court therefore considers that, having regard to the provisions of RIPA, the nature of the offences which may give rise to an interception order is sufficiently clear (compare and contrast Iordachi and Others, cited above, § 46). 160. The Court observes that under RIPA, it is possible for the communications of any person in the United Kingdom to be intercepted. However, it should be recalled that, in contrast to the Liberty and Others case which concerned the legislation on interception of communications between the United Kingdom and any other country, the present case concerns internal communications, i.e. communications within the United Kingdom. Further, the legislation must describe the categories of persons who, in practice, may have their communications intercepted. In this respect, the Court observes that there is an overlap between the condition that the categories of persons be set out and the condition that the nature of the offences be clearly defined. The relevant circumstances which can give rise to interception, discussed in the preceding paragraph, give guidance as to the categories of persons who are likely, in practice, to have their communications intercepted. Finally, the Court notes that in internal communications cases, the warrant itself must clearly specify, either by name or by description, one person as the interception subject or a single set of premises as the premises in respect of which the warrant is ordered (see paragraphs 40 to 41 above). Names, addresses, telephone numbers and other relevant information must be specified in the schedule to the warrant. Indiscriminate capturing of vast amounts of communications is not permitted under the internal communications provisions of RIPA (cf. Liberty and Others, cited above, § 64). The Court considers that, in the circumstances, no further clarification in the legislation or the Code of the categories of persons liable to have their communications intercepted can reasonably be required. 161. In respect of the duration of any telephone tapping, the Act clearly stipulates, first, the period after which an interception warrant will expire and, second, the conditions under which a warrant can be renewed (see paragraph 50 to 51 above). Although a warrant can be renewed indefinitely, the Secretary of State himself must authorise any renewal and, upon such authorisation, must again satisfy himself that the warrant remains necessary on the grounds stipulated in section 5(3) (see paragraph 51 above). In the context of national security and serious crime, the Court observes that the scale of the criminal activities involved is such that their planning often takes some time. Subsequent investigations may also be of some duration, in light of the general complexity of such cases and the numbers of individuals involved. The Court is therefore of the view that the overall duration of any interception measures will depend on the complexity and duration of the investigation in question and, provided that adequate safeguards exist, it is not unreasonable to leave this matter for the discretion of the relevant domestic authorities. The Code explains that the person seeking the renewal must make an application to the Secretary of State providing an update and assessing the value of the interception operation to date. He must specifically address why he considers that the warrant remains necessary on section 5(3) grounds (see paragraph 54 above). Further, under section 9(3) RIPA, the Secretary of State is obliged to cancel a warrant where he is satisfied that the warrant is no longer necessary on section 5(3) grounds (see paragraph 52 above). There is also provision in the Act for specific factors in the schedule to the warrant to be deleted where the Secretary of State considers that they are no longer relevant for identifying communications from or to the interception subject (see paragraph 53 above). The Code advises that the duty on the Secretary of State to cancel warrants which are no longer necessary means, in practice, that intercepting agencies must keep their warrants under continuous review (see paragraph 55 above). The Court concludes that the provisions on duration, renewal and cancellation are sufficiently clear. 162. As regards the procedure for examining, using and storing the data, the Government indicated in their submissions that, under RIPA, an intercepting agency could, in principle, listen to all intercept material collected (see paragraph 144 above). The Court recalls its conclusion in Liberty and Others, cited above, § 65, that the authorities'discretion to capture and listen to captured material was very wide. However, that case, unlike the present case, involved external communications, in respect of which data were captured indiscriminately. Contrary to the practice under the Interception of Communications Act 1985 concerning external communications, interception warrants for internal communications under RIPA relate to one person or one set of premises only (cf. Liberty and Others, cited above, § 6 4 ), thereby limiting the scope of the authorities'discretion to intercept and listen to private communications. Moreover, any captured data which are not necessary for any of the authorised purposes must be destroyed. 163. As to the general safeguards which apply to the processing and communication of intercept material, the Court observes that section 15 RIPA imposes a duty on the Secretary of State to ensure that arrangements are in place to secure any data obtained from interception and contains specific provisions on communication of intercept material (see paragraph 42 above). Further details of the arrangements are provided by the Code. In particular, the Code strictly limits the number of persons to whom intercept material can be disclosed, imposing a requirement for the appropriate level of security clearance as well as a requirement to communicate data only where there is a “need to know ”. It further clarifies that only so much of the intercept material as the individual needs to know is to be disclosed and that where a summary of the material would suffice, then only a summary should be disclosed. The Code requires intercept material, as well as copies and summaries of such material, to be handled and stored securely to minimise the risk of threat or loss. In particular, it must be inaccessible to those without the necessary security clearance (see paragraphs 46 to 47 above). A strict procedure for security vetting is in place (see paragraph 48 above). In the circumstances, the Court is satisfied that the provisions on processing and communication of intercept material provide adequate safeguards for the protection of data obtained. 164. As far as the destruction of intercept material is concerned, section 15(3) RIPA requires that the intercept material and any related communications data, as well as any copies made of the material or data, must be destroyed as soon as there are no longer any grounds for retaining them as necessary on section 5(3) grounds (see paragraph 42 above). The Code stipulates that intercept material must be reviewed at appropriate intervals to confirm that the justification for its retention remains valid (see paragraph 55 above). 165. The Code also requires intercepting agencies to keep detailed records of interception warrants for which they have applied (see paragraph 56 above), an obligation which the Court considers is particularly important in the context of the powers and duties of the Commissioner and the IPT (see paragraphs 166 to 167 below) 166. As regards supervision of the RIPA regime, the Court observes that apart from the periodic review of interception warrants and materials by intercepting agencies and, where appropriate, the Secretary of State, the Interception of Communications Commissioner established under RIPA is tasked with overseeing the general functioning of the surveillance regime and the authorisation of interception warrants in specific cases. He has described his role as one of protecting members of the public from unlawful intrusion into their private lives, of assisting the intercepting agencies in their work, of ensuring that proper safeguards are in place to protect the public and of advising the Government and approving the safeguard documents (see paragraph 70 above). The Court notes that the Commissioner is independent of the executive and the legislature and is a person who holds or has held high judicial office (see paragraph 57 above). He reports annually to the Prime Minister and his report is a public document (subject to the non-disclosure of confidential annexes) which is laid before Parliament (see paragraph 61 above). In undertaking his review of surveillance practices, he has access to all relevant documents, including closed materials and all those involved in interception activities have a duty to disclose to him any material he requires (see paragraph 59 above). The obligation on intercepting agencies to keep records ensures that the Commissioner has effective access to details of surveillance activities undertaken. The Court further notes that, in practice, the Commissioner reviews, provides advice on and approves the section 15 arrangements (see paragraphs 59 and 68 above). The Court considers that the Commissioner's role in ensuring that the provisions of RIPA and the Code are observed and applied correctly is of particular value and his biannual review of a random selection of specific cases in which interception has been authorised provides an important control of the activities of the intercepting agencies and of the Secretary of State himself. 167. The Court recalls that it has previously indicated that in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge (see Klass and Others, cited above, § 56). In the present case, the Court highlights the extensive jurisdiction of the IPT to examine any complaint of unlawful interception. Unlike in many other domestic systems (see, for example, the G 10 Law discussed in the context of Klass and Others and Weber and Saravia, both cited above), any person who suspects that his communications have been or are being intercepted may apply to the IPT (see paragraph 76 above). The jurisdiction of the IPT does not, therefore, depend on notification to the interception subject that there has been an interception of his communications. The Court emphasises that the IPT is an independent and impartial body, which has adopted its own rules of procedure. The members of the tribunal must hold or have held high judicial office or be experienced lawyers (see paragraph 75 above). In undertaking its examination of complaints by individuals, the IPT has access to closed material and has the power to require the Commissioner to provide it with any assistance it thinks fit and the power to order disclosure by those involved in the authorisation and execution of a warrant of all documents it considers relevant (see paragraph 78 above). In the event that the IPT finds in the applicant's favour, it can, inter alia, quash any interception order, require destruction of intercept material and order compensation to be paid (see paragraph 80 above). The publication of the IPT's legal rulings further enhances the level of scrutiny afforded to secret surveillance activities in the United Kingdom (see paragraph 89 above). 168. Finally, the Court observes that the reports of the Commissioner scrutinise any errors which have occurred in the operation of the legislation. In his 2007 report, the Commissioner commented that none of the breaches or errors identified were deliberate and that, where interception had, as a consequence of human or technical error, unlawfully taken place, any intercept material was destroyed as soon as the error was discovered (see paragraph 73 above). There is therefore no evidence that any deliberate abuse of interception powers is taking place. 169. In the circumstances, the Court considers that the domestic law on interception of internal communications together with the clarifications brought by the publication of the Code indicate with sufficient clarity the procedures for the authorisation and processing of interception warrants as well as the processing, communicating and destruction of intercept material collected. The Court further observes that there is no evidence of any significant shortcomings in the application and operation of the surveillance regime. On the contrary, the various reports of the Commissioner have highlighted the diligence with which the authorities implement RIPA and correct any technical or human errors which accidentally occur (see paragraphs 62, 67, 71 and 73 above). Having regard to the safeguards against abuse in the procedures as well as the more general safeguards offered by the supervision of the Commissioner and the review of the IPT, the impugned surveillance measures, insofar as they may have been applied to the applicant in the circumstances outlined in the present case, are justified under Article 8 § 2. 170. There has accordingly been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 171. The applicant complained of a violation of his right to a fair hearing in respect of the proceedings before the Investigatory Powers Tribunal. He relied on Article 6 of the Convention, which provides insofar as relevant that: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”. A. Admissibility 172. The Government contested the applicability of Article 6 § 1 to the proceedings in question, arguing that there was no “civil right” in the present case. The Court considers, in light of the parties'submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.. It further notes that it is not inadmissible on any other grounds. The complaint must therefore be declared admissible. B. Merits 1. The applicability of Article 6 § 1 a. The parties'submissions 173. The applicant alleged that the proceedings before the IPT involved the determination of his civil rights. This was the conclusion reached by the IPT in its ruling on preliminary issues of law, in which it found that Article 6 § 1 was applicable. The applicant referred to the Court's practice whereby, where national courts had conducted a comprehensive and convincing analysis on the basis of relevant Convention case-law and principles, as in the present case, the Court would need very strong reasons to depart from their conclusions and substitute its own views for those of national courts in interpreting domestic law (citing, inter alia, Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327 ‑ A; and Roche v. the United Kingdom [GC], no. 32555/96, § 120, ECHR 2005 ‑ X ). He concluded that the IPT was correct to find that Article 6 § 1 was applicable to the proceedings before it. 174. The Government argued that although the applicant had a right, as a matter of domestic law, to complain to the IPT while the alleged interception was ongoing, the right at issue was not a “civil” right for the purposes of Article 6 § 1 ( relying on the Court's judgments in Klass and Others, cited above, §§ 57 to 58 and 75; and Association for European Integration and Human Rights, cited above, § 106 ). They contended that, insofar as the use of interception powers remains validly secret, the requirements of Article 6 could not apply to the dispute ( referring to Klass and Others, cited above, § 75). In the present case, the applicant's position before the IPT was that the interception was continuing. As a result, the Government considered that the validity of the “ neither confirm nor deny ” stance taken by the authorities could not be impugned. The particular position taken by the Court in interception cases ( including Association for European Integration and Human Rights ) that rights in the field of secret interception powers were not civil rights was, they argued, supported by the Court's general jurisprudence on “civil rights” (citing Ferrazzini v. Italy [GC], no. 44759/98, § § 25, 28 and 30, ECHR 2001 ‑ VII; and Maaouia v. France [GC], no. 39652/98, § 38, ECHR 2000 ‑ X ). 175. The Government pointed to the Court's consistent case-law that the concept of “civil rights and obligations” was autonomous and could not be interpreted solely by reference to the domestic law of the respondent State and concluded that the fact that RIPA offered the additional safeguard of an application to the IPT at any time could not in itself make Article 6 § 1 apply to such disputes. As regards the applicant's argument that the Court should be slow to interfere with the ruling of the IPT that Article 6 § 1 was applicable, the Government contested that the question whether Article 6 § 1 was applicable was a matter of domestic law. In their view, Ferrazzini, cited above, § 2 4, was support for the proposition that the applicability of Article 6 § 1 was a matter of Convention law and fell within the competence of the Court. 176. The Government finally noted that the IPT's ruling was issued before the Court's judgment in Association for European Integration and Human Rights, cited above, § 106, in which the Court reached the conclusion that Article 6 § 1 did not apply to such proceedings. It was clear that secret powers of interception which were used solely in the interests of national security or in order to prevent and detect serious crime formed part of the “ hard core of public authority prerogatives”, such that it was inappropriate to classify any related rights and obligations as “civil” in nature ( citing Ferrazzini, § 29; and Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 61, ECHR 2007 ‑ IV ). b. The Court's assessment 177. The Court in Klass and Others, cited above, did not express an opinion on whether Article 6 § 1 applied to proceedings concerning a decision to place a person under surveillance (see § 75 of the Court's judgment ). However, the matter was considered by the former Commission in its prior report ( Klass and Others, no. 5029/71, Report of the Commission, Series B no. 26, pp 35 to 37, §§ 57 to 61). In particular, the Commission noted (§ 58): “ ... Supervisory measures of the kind in question are typical acts of State authority in the public interest and carried out jure imperii. They cannot be questioned before any courts in many legal systems. They do not at all directly concern private rights. The Commission concludes therefore, that [Article] 6 does not apply to this kind of State interference on security grounds.” 178. In its recent ruling on the applicability of Article 6 § 1 to proceedings concerning secret surveillance in Association for European Integration and Human Rights, cited above, § 106, the Court referred generally to the finding of the Commission in its report in the case of Klass and Others that Article 6 § 1 was not applicable in either its civil or criminal limb. In the absence of submissions from the parties on the matter, the Court concluded that nothing in the circumstances of the case before it altered the conclusion in the Klass and Others report and that there was therefore no violation of Article 6 § 1. 179. The Court notes that, in the present case, the IPT was satisfied that rights of confidentiality and of privacy for person, property and communications enjoyed a broad level of protection in English private law and that the proceedings before the tribunal therefore involved the determination of “civil rights” within the meaning of Article 6 § 1. The Court recalls that, according to its case-law, the concept of “civil rights and obligations” cannot be interpreted solely by reference to the domestic law of the respondent State. It has on several occasions affirmed the principle that this concept is “autonomous”, within the meaning of Article 6 § 1 of the Convention (see Ferrazzini v. Italy [GC], no. 44759/98, § 24, ECHR 2001 ‑ VII; and Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005 ‑ X ). However, in the present case, it is unnecessary to reach a conclusion as to whether Article 6 § 1 applies to proceedings of this nature as, for the reasons outlined below, assuming that Article 6 § 1 applies to the proceedings, the Court considers that the IPT's rules of procedure complied with the requirements of Article 6 § 1. 2. Compliance with Article 6 § 1 a. The parties'submissions 180. The applicant recalled that restrictions on court proceedings could only be compatible with Article 6 § 1 where they pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be pursued. Further, limitations could not impair the very essence of fair trial rights and any restrictions had to be sufficiently counterbalanced by the procedures followed by the judicial authorities (citing Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 61, ECHR 2000 ‑ II ). Although the applicant appeared to accept that the restrictions on the procedure before the IPT pursued the legitimate aim of securing that information was not disclosed contrary to the public interest, national security or the detection and prevention of serious crime, he argued that they were not proportionate and impaired the very essence of his right to a fair hearing. In particular, the applicant contended that Rule 6(2) to (5) (restrictions on disclosure and evidence), Rule 9 (secrecy of proceedings) and section 68 RIPA together with Rule 13 (the refusal to provide any reasons to unsuccessful complainants) were contrary to the principle of equality of arms. 181. The applicant submitted that even where national security was at stake, a domestic court could not infringe the fair hearing principle in a blanket and uncritical manner. He argued that less restrictive measures were available to achieve the aim pursued, including arrangements to protect witnesses'identities, disclosure of documents with redactions approved by the IPT, provision of a summary of particularly sensitive material under the supervision of the IPT and appointment of special advocates to whom disclosure of sensitive material could be made. He referred to a recent report on secret evidence published in June 2009 by the non-governmental organisation, JUSTICE, which called for the strengthening of disclosure procedures and increased transparency in court proceedings. 182. The Government emphasised that even where Article 6 § 1 applied to a field falling within the traditional sphere of public law, this did not in itself determine how the various guarantees of Article 6 should be applied to such disputes (citing Vilho Eskelinen and Others, cited above, § 64 ). The obligation to read the Convention as a whole meant that the scope of the Article 6 guarantees in such a case should be in harmony with the Court's approach to judicial control under Article 8. The Government argued that the overarching consideration was that an individual could not be notified of interception measures while interception was ongoing or where notification would jeopardise the capabilities or operations of intercepting agencies. They therefore disputed that the less restrictive measures proposed by the applicant were appropriate. They noted that protection of witnesses'identities would not assist in keeping secret whether interception had occurred. Nor would disclosure of redacted documents or summaries of sensitive material. Further, unless they were appointed in every case, the appointment of special advocates would also allow a complainant to draw inferences about whether his communications had been intercepted. 183. The Government argued that the procedure before the IPT offered as fair a procedure as could be achieved in the context of secret surveillance powers. In particular, a complainant did not have to overcome any evidential burden to apply to the IPT and any legal issues could be determined in a public judgment after an inter partes hearing. Further, the IPT had full powers to obtain any material it considered necessary from relevant bodies and could call upon the assistance of the Commissioner. It could appoint an advocate to assist it at closed hearings. Finally, in the event that the complainant was successful, a reasoned decision would be provided. The Government accordingly disputed that the very essence of the applicant's right to a fair trial had been impaired. b. The Court's assessment 184. The Court reiterates that according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, for example, Jespers v. Belgium, no. 8403/78, Commission decision of 15 October 1980, Decisions and Reports (DR) 27, p. 61; Foucher v. France, judgment of 18 March 1997, Reports 1997-II, § 34; and Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 380-81, § 47). The Court has held nonetheless that, even in proceedings under Article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person. There will not be a fair trial, however, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities (see, for example, Doorson v. the Netherlands, judgment of 26 March 1996, § 70, Reports 1996-II; Jasper v. the United Kingdom [GC], no. 27052/95, §§ 51 to 53, ECHR 2000-II; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 205, ECHR 2009 ‑ .... ). A similar approach applies in the context of civil proceedings. 185. The Court notes that the IPT, in its preliminary ruling of 23 January 2003, considered the applicant's complaints regarding the compliance of the Rules with Article 6 § 1. It found that, with the exception of Rule 9(6) which required all oral hearings to be held in private, the Rules challenged by the applicant were proportionate and necessary, with special regard to the need to preserve the Government's “ neither confirm nor deny policy ” (see paragraphs 92 to 95 above). 186. At the outset, the Court emphasises that the proceedings related to secret surveillance measures and that there was therefore a need to keep secret sensitive and confidential information. In the Court's view, this consideration justifies restrictions in the IPT proceedings. The question is whether the restrictions, taken as a whole, were disproportionate or impaired the very essence of the applicant's right to a fair trial. 187. In respect of the rules limiting disclosure, the Court recalls that the entitlement to disclosure of relevant evidence is not an absolute right. The interests of national security or the need to keep secret methods of investigation of crime must be weighed against the general right to adversarial proceedings (see, mutatis mutandis, Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, § 46, ECHR 2004 ‑ X). The Court notes that the prohibition on disclosure set out in Rule 6(2) admits of exceptions, set out in Rules 6(3) and (4). Accordingly, the prohibition is not an absolute one. The Court further observes that documents submitted to the IPT in respect of a specific complaint, as well as details of any witnesses who have provided evidence, are likely to be highly sensitive, particularly when viewed in light of the Government's “neither confirm nor deny” policy. The Court agrees with the Government that, in the circumstances, it was not possible to disclose redacted documents or to appoint special advocates as these measures would not have achieved the aim of preserving the secrecy of whether any interception had taken place. It is also relevant that where the IPT finds in the applicant's favour, it can exercise its discretion to disclose such documents and information under Rule 6(4) (see paragraph 84 above). 188. As regards limitations on oral and public hearings, the Court recalls, first, that the obligation to hold a hearing is not absolute. There may be proceedings in which an oral hearing is not required and where the courts may fairly and reasonably decide the case on the basis of the parties'submissions and other written materials. The character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court (see Jussila v. Finland [GC], no. 73053/01, §§ 41 to 42, ECHR 2006 ‑ XIII ). The Court notes that Rule 9(2) provides that oral hearings are within the IPT's discretion and it is clear that there is nothing to prevent the IPT from holding an oral hearing where it considers that such a hearing would assist its examination of the case. As the IPT held in its preliminary ruling, its discretion to hold oral hearings extends to inter partes oral hearings, where such hearings can take place without breaching the IPT's duty to prevent the potentially harmful disclosure of sensitive information (see paragraph 92 above). Finally, in respect of the stipulation in Rule 9(6) that hearings must be held in private (interpreted by the IPT not to apply to cases involving the determination of preliminary issues of law – see paragraph 93 above), the Court notes that it is clear from the terms of Article 6 § 1 itself that national security may justify the exclusion of the public from the proceedings. 189. Concerning the provision of reasons, the Court emphasises that the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303 ‑ A ). In the context of the IPT's proceedings, the Court considers that the “neither confirm nor deny” policy of the Government could be circumvented if an application to the IPT resulted in a complainant being advised whether interception had taken place. In the circumstances, it is sufficient that an applicant be advised that no determination has been in his favour. The Court further notes in this regard that, in the event that a complaint is successful, the complainant is entitled to have information regarding the findings of fact in his case (see paragraph 87 above). 190. In light of the above considerations, the Court considers that the restrictions on the procedure before the IPT did not violate the applicant's right to a fair trial. In reaching this conclusion, the Court emphasises the breadth of access to the IPT enjoyed by those complaining about interception within the United Kingdom and the absence of any evidential burden to be overcome in order to lodge an application with the IPT. In order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the Court considers that the restrictions on the applicant's rights in the context of the proceedings before the IPT were both necessary and proportionate and did not impair the very essence of the applicant's Article 6 rights. 191. Accordingly, assuming that Article 6 § 1 applies to the proceedings in question, there has been no violation of that Article. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 192. The applicant further complained that he had no effective remedy in respect of the alleged violation of Articles 6 § 1 and 8 of the Convention. He relied on Article 13 of the Convention, which provides insofar as relevant as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 193. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties'submissions 194. The applicant maintained that he had an “arguable claim” under Articles 6 § 1 and 8, and that the proceedings before the IPT did not afford him a remedy as required by Article 13 of the Convention as it did not comply with the requirements of Article 6 § 1. 195. The Government contended that there was no violation of Article 13 in the present case. In particular, they argued that the applicant had no arguable claim to be a victim of a violation of Article 6 § 1 or Article 8; that insofar as the applicant's complaints were in essence ones that challenged the relevant legislative scheme, the Article 13 complaint must fail (citing Leander v. Sweden, 26 March 1987, § 77(d), Series A no. 116 ); and that in any event the IPT offered an effective remedy. 2. The Court's assessment 196. Having regard to its conclusions in respect of Article 8 and Article 6 § 1 above, the Court considers that the IPT offered to the applicant an effective remedy insofar as his complaint was directed towards the alleged interception of his communications. 197. In respect of the applicant's general complaint under Article 8, the Court reiterates its case-law to the effect that Article 13 does not require the law to provide an effective remedy where the alleged violation arises from primary legislation (see James and Others v. the United Kingdom, 21 February 1986, § 85, Series A no. 98; and Leander, cited above, § 77(d)). 198. There has accordingly been no violation of Article 13. | The Court held that there had been no violation of Article 8 of the Convention, finding that UK law on interception of internal communications together with the clarifications brought by the publication of a Code of Practice indicated with sufficient clarity the procedures for the authorisation and processing of interception warrants as well as the processing, communicating and destruction of data collected. Moreover, there was no evidence of any significant shortcomings in the application and operation of the surveillance regime. Therefore, and having regard to the safeguards against abuse in the procedures as well as the more general safeguards offered by the supervision of the Commissioner and the review of the IPT, the impugned surveillance measures, in so far as they might have been applied to the applicant, had been justified under Article 8 § 2 of the Convention. |
12 | Children’s testimony | RELEVANT LEGAL FRAMEWORK AND PRACTICE I. DOMESTIC LAW AND PRACTICE Constitution 35. Under Article 22 of the Constitution, no one may be compelled to testify against himself or herself, or against those closest to him or her. Article 25 provides that everyone is entitled to compensation for intangible as well as tangible harm that he or she has suffered as a result of the unlawful actions of any person. Criminal Code 36. The sexual offences included in the Criminal Code include rape (Article 141), and intercourse or other acts of a sexual nature with a child (currently Article 145). In relation to sexual offences, a person is deemed to be incapable of comprehension if he or she is under ten years of age (Article 147). Code of Criminal Procedure 37. The relevant provisions of the Code of Criminal Procedure read as follows: Article 38. Rights and obligations of victims “ (1) A victim has the right to: ... 3) give or refuse to give testimony in accordance with the provisions of Articles 71 to 73 of this Code.” Article 66. Witness “... (3) A witness is required to give testimony unless there are lawful grounds under Articles 71 to 73 of this Code for refusal to give testimony. When giving testimony, the witness is required to tell the truth.” Article 70. Specifications concerning hearing of witnesses who are minors “ (1) A body conducting proceedings may involve a child protection official, social worker, teacher or psychologist in the hearing of a witness who is a minor. (2) If a body conducting proceedings has not received appropriate training, involvement of a child protection official, social worker, teacher or psychologist in the hearing of a minor is mandatory if: 1) the witness is under ten years of age and repeated questioning may have a harmful effect on the minor’s mind; 2) the witness is under fourteen years of age and the questioning is related to domestic violence or sexual abuse; 3) the witness has a speech impairment, sensory or learning disability or a mental disorder. (3) If necessary, the questioning of minors is video recorded. In the case specified in paragraph (2) of this Article, the questioning of minors is video recorded if the intention is to use the interview as evidence in court proceedings because the minor cannot be heard directly in a court on account of his or her age or mental state. (4) A suspect has the right to examine during the pre-trial proceedings the video recordings specified in paragraph (3) of this Article. The suspect or his or her counsel has the right to submit questions to witnesses within five days of the examination. A prosecutor’s office shall review a request within five days of receipt thereof. Dismissal of a request shall be formalised by a decision, a copy of which shall be communicated to the person who submitted the request. Dismissal of a request shall not prevent re-submission of the request in accordance with the procedure provided for in Article 225 of this Code or in the court proceedings.” Article 71. Refusal to give testimony for personal reasons “(1) The following persons have the right to refuse to give testimony as witnesses: 1) the descendants and ascendants of the suspect or accused; ...” Article 287 1. Questioning of witness “... (3) Before interviewing a witness, the court shall explain to the witness the legal bases for refusing to give testimony and the obligation to speak the truth in court, and shall obtain the signature of the witness to this effect. (4) A judge shall warn a witness of fourteen years of age or older that he or she shall be held criminally liable if he or she refuses to give testimony without any legal grounds or if he or she knowingly gives false testimony. ...” Article 288 1. Leading questions “ ... (2) For the purpose of facilitating progress in the hearing of a witness, a court may allow leading questions to be posed in other circumstances if:... 2) the question pertains to an established fact or contains a statement which is not contested; 3) the question is necessary for the purpose of introducing the main question; 4) due to the age or state of health of the witness, it is difficult for him or her to understand questions which are not leading; 5) the witness states that he or she does not remember well the circumstances which are the object of the questioning.” Article 290 1. Specific requirements for testimony given in pre-trial proceedings by witnesses who are minors “ (1) A court may not summon a minor at the request of a party to the court proceedings or admit as evidence testimony given by the minor in pre-trial proceedings, provided that the testimony was video-recorded and counsel has had the opportunity to pose questions to the witness in the pre-trial proceedings about the facts relating to the subject of proof, if: 1) the witness is under ten years of age and repeated questioning may have a harmful effect on his or her mental state; 2) the witness is under fourteen years of age and the hearing is related to domestic violence or sexual abuse;... (2) If after examination of the evidence specified in paragraph (1) of this Article the court finds that it is necessary to question the minor about additional circumstances, it may question the witness on its own initiative or on the basis of written questions prepared by the parties to the court proceedings.” Guidelines on the special treatment of minors in criminal proceedings, issued by the Prosecutor General on 29 June 2007 38. The Guidelines state that the right to refuse to give testimony must be explained to a minor thoroughly in a manner which he or she is capable of understanding. It is recommended to use the assistance of a specialist in explaining to a minor his or her rights. Interviewing a suspect who is a minor does not differ from interviewing an adult suspect. However, procedural measures taken in respect of minors must take into account their age and the interests of the child. If possible, a witness under the age of ten should not be questioned at trial in order to avoid harmful consequences for the child (points 8-10 of the Guidelines). Act on Compensation for Damage Caused in Criminal Proceedings 39. The relevant provisions of the Act, which entered into force on 1 May 2015, read as follows : Section 7. Compensation for damage regardless of final outcome of criminal proceedings “ (1) If a body conducting proceedings has violated procedural law and thereby caused damage to a person, the person has the right to claim compensation for such damage, regardless of the final outcome of the criminal proceedings by which the damage was caused to the person. (2) A body conducting proceedings is exonerated from liability if it proves that it is not at fault in causing the damage. (3) If the damage specified in subsection (1) of this section is caused by a court, the state is liable under the State Liability Act. ...” Section 11. Compensation for non-pecuniary damage “... (2) A natural person shall be compensated for non-pecuniary damage under section 7 of this Act only if the person was deprived of liberty; he or she was tortured or treated inhumanly or degradingly; damage was caused to his or her health, the inviolability of his or her home or right to respect for private life; the confidentiality of his or her messages was breached or his or her honour or good name was tarnished in the criminal proceedings. Fault on the part of a body conducting proceedings does not constitute a prerequisite for compensation for non-pecuniary damage if the person was tortured or treated inhumanly or degradingly in violation of procedural law. ...” Section 21. Lodging of claim after county court proceedings “... (4) If a person has failed, with good reason, to lodge a claim for compensation with a circuit court or if the existence of the basis for the claim for compensation for damage became evident only in cassation proceedings and the person has failed, with good reason, to lodge a compensation claim with the Supreme Court, the claim may be lodged with a prosecutor’s office or a body conducting extra-judicial proceedings. The claim shall be lodged within six months of the entry into force of the decision of the circuit court or Supreme Court. The adjudication of the claim shall comply with the provisions under part 2 of Chapter 4 of this Act.” Domestic case-lawCriminal proceedings Criminal proceedings Criminal proceedings 40. In its judgment of 20 March 2002 in case no. 3-1-1-25-02 the Supreme Court found that a failure to inform a suspect or witness of their right not to incriminate themselves or their next of kin constituted a material breach of criminal procedural law, resulting in the inadmissibility of the evidence so obtained. It was impermissible to consider that duty as a formality by simply having a person sign or read the list of the relevant articles of the Code of Criminal Procedure. The investigator had to orally disclose and explain the relevant provisions to the witness. 41. On 18 April 2005, in case no. 3-1-1-19-05, the Supreme Court considered that in assessing the effect of a breach of a procedural rule on the admissibility of the evidence, it was necessary to have regard to the purpose of the rule and whether the evidence could have been obtained without breaching it. 42. In a judgment of 2 May 2007 in case no. 3-1-1-6-07, the Supreme Court held that not every violation of procedural law in the process of collecting evidence necessarily meant that the evidence was inadmissible. However, it was inexcusable for an investigator to knowingly violate procedural law by considering that a particular breach was not significant. Isolated violations may amount to a material breach of procedural law if the investigator committed them intentionally. 43. On 6 October 2007 in case no 1-15-10967, the Supreme Court held that where a conviction was based on a single piece of evidence, such as testimony given by the victim, it was particularly important for the court to examine comprehensively and impartially all possible doubts that may have arisen in the assessment of that sole piece of incriminating evidence and to dispel those doubts convincingly and in a manner comprehensible to the reader. 44. In case no. 3-1-1-72-07, dated 20 November 2007, the Supreme Court emphasised that only lawfully collected evidence could serve as a basis for punishing a person in criminal proceedings. Statements given by witnesses who had not been properly advised of their rights and duties could not constitute lawful evidence, as they had been obtained in material breach of procedural law. Compensation for damage 45. On 13 June 2016 in case no. 3-1-1-34-16, the Supreme Court examined a compensation claim in respect of damage caused to the claimant by unlawful surveillance activities in the framework of criminal proceedings. It considered that since the surveillance activities in question had already been declared unlawful by a judgment of the criminal court, the damage caused fell within the scope of section 7(1) of the Act on Compensation for Damage Caused in Criminal Proceedings. The Supreme Court reiterated that it was only in exceptional circumstances, where a person had not had the opportunity to ask for the lawfulness of procedural measures to be assessed in the so-called main proceedings, that a court adjudicating on the compensation claim was competent to assess the lawfulness of actions taken or orders given in criminal proceedings. 46. By a judgment of 22 December 2017 in case no. 1-16-2675 the Supreme Court awarded compensation to a convicted person in respect of non-pecuniary damage caused by unlawful court decisions relating to his pre-trial detention. EUROPEAN UNION LAW 47. The relevant part of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography provides as follows: Article 20 Protection of child victims in criminal investigations and proceedings “... 3. Without prejudice to the rights of the defence, Member States shall take the necessary measures to ensure that in criminal investigations relating to any of the offences referred to in Articles 3 to 7: (a) interviews with the child victim take place without unjustified delay after the facts have been reported to the competent authorities; (b) interviews with the child victim take place, where necessary, in premises designed or adapted for this purpose; (c) interviews with the child victim are carried out by or through professionals trained for this purpose; (d) the same persons, if possible and where appropriate, conduct all interviews with the child victim; (e) the number of interviews is as limited as possible and interviews are carried out only where strictly necessary for the purpose of criminal investigations and proceedings; (f) the child victim may be accompanied by his or her legal representative or, where appropriate, by an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person. 4. Member States shall take the necessary measures to ensure that in criminal investigations of any of the offences referred to in Articles 3 to 7 all interviews with the child victim or, where appropriate, with a child witness, may be audio-visually recorded and that such audio-visually recorded interviews may be used as evidence in criminal court proceedings, in accordance with the rules under their national law.” 48. Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishes minimum standards on the rights, support and protection of victims of crime. The relevant part of the Directive reads as follows: Article 20 Right to protection of victims during criminal investigations “Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations: (a) interviews of victims are conducted without unjustified delay after the complaint with regard to a criminal offence has been made to the competent authority; (b) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation; (c) victims may be accompanied by their legal representative and a person of their choice, unless a reasoned decision has been made to the contrary; (d) medical examinations are kept to a minimum and are carried out only where strictly necessary for the purposes of the criminal proceedings.” Article 22 Individual assessment of victims to identify specific protection needs “... 4. For the purposes of this Directive, child victims shall be presumed to have specific protection needs due to their vulnerability to secondary and repeat victimisation, to intimidation and to retaliation. To determine whether and to what extent they would benefit from special measures as provided for under Articles 23 and 24, child victims shall be subject to an individual assessment as provided for in paragraph 1 of this Article.” Article 23 Right to protection of victims with specific protection needs during criminal proceedings “1. Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 22(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings. 2. The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1): (a) interviews with the victim being carried out in premises designed or adapted for that purpose; (b) interviews with the victim being carried out by or through professionals trained for that purpose; (c) all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice; (d) all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced.” Article 24 Right to protection of child victims during criminal proceedings “1. In addition to the measures provided for in Article 23, Member States shall ensure that where the victim is a child: (a) in criminal investigations, all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings; (b) in criminal investigations and proceedings, in accordance with the role of victims in the relevant criminal justice system, competent authorities appoint a special representative for child victims where, according to national law, the holders of parental responsibility are precluded from representing the child victim as a result of a conflict of interest between them and the child victim, or where the child victim is unaccompanied or separated from the family; (c) where the child victim has the right to a lawyer, he or she has the right to legal advice and representation, in his or her own name, in proceedings where there is, or there could be, a conflict of interest between the child victim and the holders of parental responsibility. The procedural rules for the audiovisual recordings referred to in point (a) of the first subparagraph and the use thereof shall be determined by national law.” INTERNATIONAL MATERIALUnited Nations Convention on the Rights of the Child United Nations Convention on the Rights of the Child United Nations Convention on the Rights of the Child 49. The relevant provisions of the Convention, which came into force in respect of Estonia on 20 November 1991, read as follows: Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ... Article 19 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. ... Article 34 States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; ...” Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (“the Lanzarote Convention”) 50. The Convention was adopted in Lanzarote on 25 October 2007 and entered into force on 1 July 2010. It was ratified by Estonia on 22 November 2016 and came into force on 1 March 2017. Its relevant parts provide as follows: Article 4 – Principles “Each Party shall take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to protect children.” Chapter VI – Substantive criminal lawArticle 18 – Sexual abuse “1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised: a. engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities; b. engaging in sexual activities with a child where: – use is made of coercion, force or threats; or – abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or – abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.” Chapter VII – Investigation, prosecution and procedural lawArticle 30 – Principles “1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child. 2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate. 3. Each Party shall ensure that the investigations and criminal proceedings are treated as priority and carried out without any unjustified delay. 4 Each Party shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.” Article 31 – General measures of protection “1. Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by: a. informing them of their rights and the services at their disposal and, unless they do not wish to receive such information, the follow-up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein as well as the outcome of their cases; ... c. enabling them, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considered; ...” Article 34 – Investigations “1. Each Party shall adopt such measures as may be necessary to ensure that persons, units or services in charge of investigations are specialised in the field of combating sexual exploitation and sexual abuse of children or that persons are trained for this purpose. Such units or services shall have adequate financial resources. ...” Article 35 – Interviews with the child “1. Each Party shall take the necessary legislative or other measures to ensure that: a. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities; b. interviews with the child take place, where necessary, in premises designed or adapted for this purpose; c. interviews with the child are carried out by professionals trained for this purpose; d. the same persons, if possible and where appropriate, conduct all interviews with the child; e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings; f. the child may be accompanied by his or her legal representative or, where appropriate, an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person. 2. Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings, according to the rules provided by its internal law. ...” 51. The relevant part of the Explanatory Report to the Lanzarote Convention reads as follows: Article 30 – Principles “211. Existing international legal instruments on the protection of children give only an indication of the need for a special judicial procedure adapted to the child victim. Recommendation Rec (2001) 16, which is certainly the most detailed such instrument, recalls in particular the need to safeguard child victims’ rights without violating the rights of suspects, the need to respect child victims’ private life and to provide special conditions for hearings with children. ... 212. Beyond these objectives, the definition and implementation of rules of procedure adapted to child victims are left to the discretion and initiative of each State. Recent analyses, including REACT, highlight the differences and discrepancies in the area. 213. The negotiators considered that a number of provisions should be made to implement a child-friendly and protective procedure for child victims in criminal proceedings. However, paragraph 4 underlines that these measures should not violate the rights of the defence and the principles of a fair trial as set out in Article 6 ECHR. 214. The central issue has to do with the child’s testimony which constitutes a major challenge in the procedures of numerous States, as witnessed by a number of cases that have received intensive media coverage and the changes that criminal procedure systems have undergone in the last decades. In this context, it has become urgently important for States to adopt procedural rules guaranteeing and safeguarding children’s testimony. 215. This is why paragraphs 1 and 2 establish two general principles to the effect that investigations and judicial proceedings concerning acts of sexual exploitation and sexual abuse of children must always be conducted in a manner which protects the best interests and rights of children, and must aim to avoid exacerbating the trauma which they have already suffered. ...” Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice 52. The Guidelines on child-friendly justice were adopted by the Council of Europe Committee of Ministers on 17 November 2010. They include the following provisions: Evidence/statements by children “64. Interviews of and the gathering of statements from children should, as far as possible, be carried out by trained professionals. Every effort should be made for children to give evidence in the most favourable settings and under the most suitable conditions, having regard to their age, maturity and level of understanding and any communication difficulties they may have. 65. Audiovisual statements from children who are victims or witnesses should be encouraged, while respecting the right of other parties to contest the content of such statements. 66. When more than one interview is necessary, they should preferably be carried out by the same person, in order to ensure coherence of approach in the best interests of the child. 67. The number of interviews should be as limited as possible and their length should be adapted to the child’s age and attention span. 68. Direct contact, confrontation or interaction between a child victim or witness with alleged perpetrators should, as far as possible, be avoided unless at the request of the child victim. 69. Children should have the opportunity to give evidence in criminal cases without the presence of the alleged perpetrator. 70. The existence of less strict rules on giving evidence such as absence of the requirement for oath or other similar declarations, or other child-friendly procedural measures, should not in itself diminish the value given to a child’s testimony or evidence. 71. Interview protocols that take into account different stages of the child’s development should be designed and implemented to underpin the validity of children’s evidence. These should avoid leading questions and thereby enhance reliability. 72. With regard to the best interests and well-being of children, it should be possible for a judge to allow a child not to testify. 73. A child’s statements and evidence should never be presumed invalid or untrustworthy by reason only of the child’s age.” 53. The relevant part of the Explanatory Memorandum to the above guidelines reads as follows: “126. The issue of collecting evidence/statements from children is far from being simple. As standards are rare in this area (such as the United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime), the need was felt to address these issues, as the conduct of such interviews with regard to evidence/statements requires practical guidance. ... 129. Member states’ procedural laws and legislation in this domain vary considerably, and there might be less strict rules on giving evidence by the children. In any case, member states should give priority to the child’s best interests in the application of legislation regarding evidence. Examples provided by Guideline 70 include the absence of the requirement for the child to take an oath or other similar declarations. These guidelines do not intend to affect the guarantees of the right to a defence in the different legal systems; however, they do invite member states to adapt, where necessary, some elements of the rules on evidence so as to avoid additional trauma for children. In the end, it will always be the judge who will consider the seriousness and validity of any given testimony or evidence. 130. Guideline 70 also indicates that these adaptations for children should not in themselves diminish the value of a given testimony. However, preparing a child witness to testify should be avoided because of the risk of influencing the child too much. Establishing model interview protocols (Guideline 71) should not necessarily be the task of the judges, but more that of national judicial authorities .” THE LAW ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 54. The applicant complained that the authorities had failed to conduct an effective criminal investigation into her allegations of sexual abuse by her father. In particular, the authorities had failed to collect the evidence in compliance with the procedural rules, which had led to its exclusion at trial and the acquittal of the alleged perpetrator. By leaving her without effective legal protection against sexual abuse, the State had breached its positive obligations under Articles 3 and 8 of the Convention. The relevant parts of those provisions read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 § 1 “Everyone has the right to respect for his private and family life ...” AdmissibilityAbuse of the right of application Abuse of the right of application Abuse of the right of application 55. The Government invited the Court to reject the application as being an abuse of the right of application. They argued that the applicant had failed to inform the Court in a timely manner about the developments in the civil proceedings, notably the decision of the Court of Appeal of 26 June 2017 (see paragraph 33 above). Although that decision had been rendered after the lodging of the application on 19 April 2016, it had been the applicant’s duty to submit it to the Court immediately, rather than in her reply to the Government’s observations following notification of the application. The decision of the Court of Appeal of 26 June 2017 constituted relevant new information demonstrating that the applicant’s grievances had been remedied and that she had lost her victim status. 56. The Court reiterates that the submission of incomplete and thus misleading information may amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810, § 28, ECHR 2014, with further references). 57. In the present case, the Court notes that the applicant’s complaint before it concerns specifically the criminal proceedings relating to her alleged ill-treatment which, at the time the application was lodged, had ended with a final judgment of the Supreme Court. The ongoing civil proceedings were not the subject matter of the application and pursued a different objective – that of solving a custody and contact dispute between the applicant’s parents. Even so, the applicant did inform the Court of the civil court judgment in question, allowing the Government to make further submissions on that basis. Given the nature of the applicant’s complaint, the impugned delay in submitting the information cannot be seen as an attempt on the part of the applicant to conceal from the Court any essential information that would be relevant for its decision. 58. The Court therefore rejects the Government’s objection that there has been an abuse of the right of application. Victim status 59. The Government submitted that the applicant had lost her victim status by having obtained a ruling in her favour in the subsequent civil proceedings concerning custody and contact rights. They pointed out that in its ruling of 26 June 2017 the Court of Appeal, having conducted an assessment of all the evidence independently of the criminal courts, found it established that the applicant had been sexually abused by her father and barred any contact with her until she reached the age of eighteen. 60. The applicant argued that the civil proceedings had not been sufficient in the circumstances of her case, which required effective prosecution of the perpetrator and condemnation by the State. 61. The Court reiterates that effective protection against rape and sexual abuse of children, where fundamental values and essential aspects of private life are at stake, requires measures of a criminal-law nature (see Söderman v. Sweden [GC], no. 5786/08, § 82, ECHR 2013). The protection afforded by civil proceedings is insufficient (see A and B v. Croatia, no. 7144/15, § 92, 20 June 2019). In the present case, the applicant’s allegations were serious enough to warrant a criminal investigation, the effectiveness of which is the object of her complaint before this Court. The fact that the alleged sexual abuse was examined also by the civil courts in the context of the custody and contact proceedings does not detract from the State’s positive obligation to apply criminal-law provisions through the conduct of an effective investigation. It follows that the Government’s objection formulated as the lack of victim status must be rejected (see also A, B and C v. Latvia, no. 30808/11, §§ 163-64, 31 March 2016). Non-exhaustion of domestic remedies 62. The Government argued that the applicant had failed to exhaust all available domestic remedies. In particular, it had been open to her to lodge a claim for damages against the State under the Act on Compensation for Damage Caused in Criminal Proceedings (see paragraph 39 above). Under sections 7 and 11(2), a person who had suffered damage as a result of a breach of procedural law was entitled to compensation for non-pecuniary damage sustained in certain situations, including when the person had been tortured or subjected to inhuman or degrading treatment or when respect for his or her private life had been infringed. The Government cited cases where the domestic courts had awarded compensation in connection with unlawful surveillance activities and unlawful pre-trial detention (see paragraphs 45-46 above). Although there had been no cases where a breach of criminal procedure was alleged to have contravened the State’s positive obligations under Articles 3 and 8 of the Convention, the case-law was still developing and the national courts were required to take into account the Convention principles. Furthermore, if the applicant considered that the legislation was too restrictive or contained lacunae, she could base her compensation claim directly on Article 25 of the Constitution (see paragraph 35 above). In conclusion, the Government considered that the applicant should have given the authorities the opportunity to assess the alleged violation of her Convention rights by lodging a compensation claim. 63. The applicant contended that following the Supreme Court’s final decision in the criminal case, she had had no further avenues of redress available to her. 64. The Court reiterates that the obligation to exhaust domestic remedies requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 85-86, 9 July 2015, and the references therein). 65. Turning to the present case, the Court notes that the criminal proceedings concerning the alleged sexual abuse of the applicant concluded with the final judgment of the Supreme Court. The applicant thus made full use of the criminal-law avenue available to her before turning to the Court. It observes that the civil remedy relied on by the Government could only lead to the payment of damages by the State rather than to the identification and punishment, if appropriate, of the offender, which could only be achieved within the framework of criminal proceedings. According to the Court’s established case-law, a compensatory remedy cannot be regarded as adequate for the fulfilment of a State’s obligations under Articles 3 and 8 of the Convention to provide effective protection against serious attacks on the physical integrity of a person in cases such as the present one (see, for example, Remetin v. Croatia, no. 29525/10, § 76, 11 December 2012, and Pulfer v. Albania, no. 31959/13, § 71, 20 November 2018). The Court therefore finds that following the conclusion of the criminal proceedings, which was the appropriate channel of redress for the applicant’s allegations of sexual abuse, she was not required to resort further to the compensatory remedy advanced by the Government, as it was in any event incapable of providing direct and adequate redress for her complaint. 66. In the light of the above considerations, the Government’s objection must be rejected. Conclusion 67. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 68. The applicant submitted that the criminal investigation into her allegations of ill-treatment had not been effective, as the authorities had failed to collect the evidence in compliance with the procedural rules, making its use impossible at the trial. That omission had had a direct effect on the outcome of the criminal proceedings, leading to the acquittal of the alleged perpetrator. 69. The applicant further argued that as a minor, she could not be subjected to the same procedural rules as an adult witness. However, as recognised by the Supreme Court, there were no separate rules in Estonia for the pre-trial questioning of child witnesses when it came to advising them of their rights and obligations. It was nevertheless essential to treat child witnesses differently from adult witnesses, in the light of the duty of the States to take into account the child’s best interests as set out in, inter alia, the UN Convention on the Rights of the Child, the Lanzarote Convention and the relevant EU directives (see paragraphs 47-50 above). 70. The applicant questioned the relevance of explaining both the duty to tell the truth and the possibility to refuse to testify against her father, given her young age and limited understanding. Even if the explanation had been given, it was doubtful whether it would have had any effect on the content and quality of her testimony. She also pointed out that under Estonian law minors under the age of ten were deemed to be incapable of comprehension when it came to sexual offences. Furthermore, it was argued that the right to refuse to give statements against a family member, which was designed to protect family relationships, should have no application in the present case where a parent is alleged to have committed sexual abuse against his child. In any case, the failure to provide her with the above information should not have served as grounds to exclude her testimony completely. 71. In sum, the applicant considered that by applying the procedural rules in a manner which did not sufficiently take into account the special needs and interests of a child victim, the authorities had left her without effective protection against ill-treatment. (b) The Government 72. The Government were of the view that the State authorities had complied with their positive obligations under Articles 3 and 8 of the Convention. The alleged acts of sexual abuse were punishable under criminal law and there was no issue with regard to its application in practice. The pre-trial investigation and the subsequent court proceedings had also complied with the requirements of the Convention, giving due consideration to the rights of the victim and those of the accused, ensuring a fair trial overall. 73. In particular, the criminal proceedings had been instituted immediately after the filing of a crime report on 19 March 2012. The investigators had collected all the evidence that could be collected, including interviewing the applicant in the presence of a psychologist and her mother, and commissioning an expert assessment of her psychological state and a physical examination. The investigation had concluded with the bringing of charges on 27 June 2013, following which the case had been considered at three levels of jurisdiction, culminating in the Supreme Court decision on 23 October 2015. The total length of the proceedings, amounting to about three years and seven months, could not be considered unreasonable. The applicant had participated in the proceedings with the assistance of her legal representative and counsel, both of whom had attended the court hearings in her absence. At no point during the proceedings had those representatives expressed any criticism of the conduct of the investigation. 74. As regards the shortcomings identified by the Supreme Court leading to the exclusion of the applicant’s testimony, the Government submitted that the obligation to tell the truth was one of the most important duties of a witness under the Code of Criminal Procedure, which applied regardless of a witness’s age. A failure to inform a witness of that obligation, however, did not automatically result in the exclusion of his or her testimony. Such exclusion was possible in the circumstances of a case, particularly where the testimony was the only evidence supporting an accused’s conviction. In the present case, compliance with the requirement to inform the applicant of that duty had assumed special importance, since her testimony had carried decisive weight in the criminal case and she could not be directly questioned by the defence at the trial. Equally important had been the duty to inform the witness about her right not to testify against her next of kin, a duty which had moreover been specifically set out in the guidelines of the Prosecutor General on the special treatment of minors in criminal proceedings. The applicant should have been made aware of that right so that she could understand the consequences of testifying against her father. 75. The Government pointed out that the rules of international instruments dealing with the protection of the rights of children in criminal proceedings also emphasised the obligation to ensure the rights of the defence and the requirements of a fair trial. As the procedural obligations laid down in domestic law were not contrary to the Convention or any other international or European regulation, it had fallen within the domestic courts’ margin of appreciation to decide what weight to attribute to the investigators’ omission, having regard to the rights of the accused. 76. In the circumstances of the present case, the strict approach adopted by the Supreme Court to the admissibility of the evidence obtained in material breach of the procedural rules had been justified. 77. In the Government’s submission, the breach of the important procedural requirements had not rendered the criminal investigation ineffective. The shortcomings had concerned isolated omissions in the investigation, rather than any significant flaws or systemic defects in the legislation or practice. The effect of the investigators’ failure to advise the applicant of her rights and duties on the admissibility of her testimony had not been immediately apparent, as that failure had become an issue in the context of assessing the credibility of the testimony. Moreover, in acquitting the alleged perpetrator, the Supreme Court had pointed also to other shortcomings in the proceedings before the lower-instance courts, criticising notably their approach to the evidence. Considering that there was no right under the Convention to obtain a criminal conviction and that the assessment of the evidence fell primarily within the competence of the domestic courts, the Government concluded that in the present case there had been no violation of Articles 3 and 8 of the Convention. The Court’s assessment (a) General principles 78. The Court reiterates that both Articles 3 and 8 of the Convention entail an obligation on the State to safeguard the physical and psychological integrity of a person (see, among other authorities, M. and C. v. Romania, no. 29032/04, §§ 107-11, 27 September 2011, and M.P. and Others v. Bulgaria, no. 22457/08, § 108, 15 November 2011). It has previously held that the authorities’ positive obligations in this context may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Söderman, cited above, § 80, with further references). Children and other vulnerable individuals, in particular, are entitled to effective protection (see M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII). 79. Regarding, more specifically, serious acts such as rape and other forms of sexual abuse of children, where fundamental values and essential aspects of private life are at stake, it falls upon the member States to ensure that efficient criminal-law provisions are in place (see X and Others v. Bulgaria [GC], no. 22457/16, 2 February 2021). In such cases the State’s positive obligations also include requirements related to the effectiveness of the criminal investigation (see Söderman, cited above, §§ 82-83, with further references). 80. The Court has held that an effective investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and, if appropriate, punishment of those responsible. This is not an obligation of result, but one of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence (see Z. v. Bulgaria, no. 39257/17, § 65, 28 May 2020). 81. Moreover, in so far as the investigation leads to charges being brought before the national courts, the procedural obligations in relation to the alleged ill-treatment extend to the trial stage of the proceedings. In such cases the proceedings as a whole, including the trial stage, must satisfy the requirements of the prohibition of ill-treatment ( ibid., § 66 ). The Court has already held that, regardless of the final outcome of the proceedings, the protection mechanisms available under domestic law should operate in practice in a manner allowing for the examination of the merits of a particular case within a reasonable time (see W. v. Slovenia, no. 24125/06, § 65, 23 January 2014). 82. However, there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see Söderman, cited above, § 83). 83. The Court reiterates that the obligations incurred by the State under Articles 3 and 8 of the Convention in cases of alleged sexual abuse of children require respect for the best interests of the child. The right to human dignity and psychological integrity requires particular attention where a child is the victim of violence (see M.M.B. v. Slovakia, no. 6318/17, § 61, 26 November 2019, and C.A.S. and C.S. v. Romania, no. 26692/05, § 82, 20 March 2012). The Court has also emphasised that it was incumbent on the States to adopt procedural rules guaranteeing and safeguarding children’s testimony (see G.U. v. Turkey, no. 16143/10, § 73, 18 October 2016). 84. In view of the above, States are required under Articles 3 and 8 to enact provisions criminalising the sexual abuse of children and to apply them in practice through effective investigation and prosecution, bearing in mind the particular vulnerability of children, their dignity and their rights as children and as victims (see Z v. Bulgaria, § 70, and A and B v. Croatia, § 112, both cited above). These obligations also stem from other international instruments, such as, inter alia, the UN Convention on the Rights of the Child and the Lanzarote Convention (see paragraphs 49-50 above). In interpreting the State’s obligations mentioned above, the Court will have regard to the relevant rules and principles of international law, as well as to non-binding instruments of Council of Europe organs (see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 69 and 74, ECHR 2008, and X and Others v. Bulgaria, cited above, §§ 179 and 192). (b) Application of these principles to the present case 85. There is no doubt in the present case that the alleged sexual abuse of the applicant falls within the scope of Articles 3 and 8 of the Convention, triggering the State’s positive obligations to enact criminal-law provisions punishing effectively the sexual abuse of children and to apply them in practice through effective investigation and prosecution. 86. Nor is it disputed that the criminal law prohibited the sexual abuse alleged by the applicant and provided for criminal prosecution of those responsible. Indeed, the applicant’s allegations gave rise to the opening of a criminal investigation under the relevant provisions of the Criminal Code and the prosecution and trial of the alleged offender. 87. The Court must thus examine whether the application of the criminal-law provisions in practice, through the criminal investigation and prosecution, was defective to the point of constituting a violation of the respondent State’s positive obligations under Articles 3 and 8 of the Convention. It considers that the criminal-law mechanisms should be implemented so as to address the particular vulnerability of the applicant as a young child who had allegedly been a victim of sexual abuse by her father, taking as a primary consideration the child’s best interests, and in this connection so as to afford protection to her rights as a victim (see A and B v. Croatia, cited above, § 121). 88. In addressing the question, the Court will take into account the criteria laid down in international instruments. In particular, it notes that the Lanzarote Convention, the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice and the relevant EU directives lay down a number of requirements relating to the collection and preservation of evidence from children (see paragraphs 47, 48, 50 and 52 above). Although the Lanzarote Convention entered into force in respect of Estonia subsequent to the facts of the present case, the other relevant instruments contain provisions similar to those of that Convention. 89. The Court is not concerned with allegations of errors or isolated omissions but only significant shortcomings in the proceedings and the relevant decision-making process, namely those that are capable of undermining the authorities’ capability of establishing the circumstances of the case or the person responsible (see S.M. v. Croatia [GC], no. 60561/14, § 320, 25 June 2020). It cannot replace the domestic authorities in the assessment of the facts of the case, nor can it decide on the alleged perpetrator’s criminal responsibility (see X and Others v. Bulgaria, cited above, § 186). 90. In the present case, the applicant’s complaint concerns procedural deficiencies in the criminal proceedings as a whole, including the failure of the investigator to inform her of her procedural rights and duties, and the reaction of the Supreme Court to that failure resulting in the exclusion of her testimony and the acquittal of the alleged perpetrator on procedural grounds. 91. The Court notes that following receipt of the allegations of sexual abuse on 19 March 2012, the authorities immediately instituted criminal proceedings. The applicant was interviewed on the same day as a victim. A further interview took place on 16 May 2012. The interviews were carried out by a specialist investigator of the same sex in the presence of a psychologist. The applicant was accompanied by her mother as her legal representative. The interviews were video recorded in order to safeguard the applicant’s testimony for its possible use in subsequent court proceedings and to ensure respect for the rights of the accused, who would not be allowed to confront her directly. 92. However, in neither of these interviews was the applicant advised by the investigator of her right not to testify against a member of her family and of her duty to tell the truth, such instructions being required by the rules of criminal procedure. 93. The investigative authorities twice questioned the alleged perpetrator, who denied any sexual abuse of his daughter, and had a psychiatric assessment of him performed. He and his counsel were presented with the video-recorded statements of the applicant and given an opportunity, which they did not use, to put questions to her in writing. 94. The evidence collected during the investigation was considered sufficient to charge the applicant’s father with acts of sexual abuse in June 2013 and to send the case for trial. 95 Given her young age, the applicant was not called to testify in court, as had been suggested by experts. The applicant’s video-recorded statements given at the pre-trial stage were disclosed at the hearings and viewed by both the first-instance and appellate courts. The defence was also able to observe the witness’s demeanour under questioning and cast doubt on the reliability of her statements, arguing, inter alia, that they had been unduly influenced by her mother, who had been present during the interviews. 96. Based on the evidence gathered, including the testimony of experts and other witnesses, the first-instance court found the applicant’s allegations of sexual abuse proven and convicted her father as charged. Although the Court of Appeal upheld the judgment, its decision was not unanimous. The dissenting judge questioned the reliability of the victim’s testimony on which the conviction had been based and found that the testimony had been obtained in breach of procedural requirements to inform the witness of the duty to tell the truth and of the right not to testify against her next of kin. 97. Subsequently, in examining an appeal by the accused contesting his conviction, the Supreme Court considered that the failure to advise the applicant before her interviews of her obligation to tell the truth and her right to refuse to testify against her father was of such importance as to render inadmissible her testimony, which was decisive evidence in the case. As the omission at issue could not be remedied by remitting the case to the lower-instance courts where the child victim could not be heard, the exclusion of the main evidence resulted in the acquittal of the accused. 98. The Court notes that in Estonia the general rules set out in the law for questioning witnesses are also applicable to child witnesses (see paragraph 24 above). Nevertheless, in practice it has been recognised that when questioning child witnesses and advising them of their rights and duties, account must be taken of their age and level of understanding (see paragraphs 22 and 38 above). 99. In this connection, the Court observes that under the relevant international instruments, investigations and criminal proceedings should be carried out in a manner which protects the best interests and rights of children, such protection requiring the adoption of child-friendly and protective measures for child victims in criminal proceedings (see, for example, Article 30 of the Lanzarote Convention and the Explanatory Report thereto, paragraphs 50-51 above). In this context, it is important that the States have in place procedural rules guaranteeing and safeguarding children’s testimony (see G.U. v. Turkey, cited above, § 73). 100. In the present case, it is undisputed that the investigator did not give in any form or manner the required instructions to the applicant when interviewing her as a child witness following the institution of the criminal proceedings. The Court notes that the whole criminal case rested essentially on the credibility of the applicant’s testimony. However, the Supreme Court excluded that testimony entirely from the body of evidence on procedural grounds relating to the investigator’s failure to provide the required warnings. Although it also pointed to other procedural shortcomings, notably in the judgments of the lower-instance courts, the identified failure of the investigative bodies was sufficient, in itself, to acquit the accused. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, among other authorities, Selahattin Demirtaş v. Turkey (no. 2) v. Turkey [GC], no. 14305/17, § 249, 22 December 2020). 101. In the instant case, the failure to give the applicant, a 4-year old child, the warnings generally required by law for any witness statement, and the consequences flowing from that failure as determined by the Supreme Court, resulted in the applicant’s testimony becoming unusable for the determination of the criminal charge against the accused. Since the latter’s conviction was to a decisive extent based on the testimony of the applicant and since there was no way of remedying the failure associated with it, the accused had to be acquitted. Aside from the question whether such warnings could be considered appropriate at all in a case such as the present, the Supreme Court’s decision, combined with the investigator’s omission, undermined the effective prosecution of the alleged offences. This is because, having regard to the impossibility to re-examine the case in the lower-instance courts, it was ultimately incapable of establishing the facts of the case and determining the question of culpability of the alleged offender on the merits 102. The Court considers that for the effective protection of children’s rights in line with international standards, it is essential to safeguard their testimony both during the pre-trial investigation and trial. Estonian law, as regards the warnings to be given to witnesses, does not make a distinction between witnesses according to their age, and thus does not provide for exceptions or adaptions for child witnesses. The Court notes in this connection that, according to the Council of Europe Committee of Ministers’ Guidelines on child-friendly justice, where less strict rules on giving evidence or other child-friendly measures apply, such measures should not in themselves diminish the value given to a child’s testimony or evidence, without prejudice to the rights of the defence (see paragraphs 52 and 53 above). However, in the present case the applicant’s testimony was found to be inadmissible precisely because of the strict application of procedural rules which made no distinction between adults and children. The Court reiterates that it is not concerned with the responsibility of any particular national authority, since what is at issue in all cases before it is the international responsibility of the State (see, among other authorities, Tarariyeva v. Russia, no. 4353/03, § 85, ECHR 2006 ‑ XV (extracts). 103. In view of the above, the Court finds that there were significant flaws in the domestic authorities’ procedural response to the applicant’s allegation of rape and sexual abuse by her father, which did not sufficiently take into account her particular vulnerability and corresponding needs as a young child so as to afford her effective protection as the alleged victim of sexual crimes. Accordingly, the Court, without expressing an opinion on the guilt of the accused, concludes that the manner in which the criminal-law mechanisms as a whole were implemented in the present case, resulting in the disposal of the case on procedural grounds, was defective to the point of constituting a violation of the respondent State’s positive obligations under Articles 3 and 8 of the Convention. 104. There has therefore been a violation of Articles 3 and 8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 105. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 106. The applicant submitted that she had suffered non-pecuniary damage but left the determination of the amount of compensation to the Court. The Government considered that the finding of a violation would constitute sufficient just satisfaction. 107. The Court accepts that the applicant has suffered non-pecuniary damage as a result of the defective criminal proceedings which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 16,300 in respect of non-pecuniary damage. Costs and expenses 108. The applicant also claimed EUR 7,140 for the costs and expenses incurred before the domestic courts. 109. The Government considered that the amount claimed was excessive. 110. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum claimed in full. Default interest 111. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been significant flaws in the domestic authorities’ procedural response to the applicant’s allegation of rape and sexual abuse by her father, which had not sufficiently taken into account her particular vulnerability and corresponding needs as a young child so as to afford her effective protection as the alleged victim of sexual crimes. Accordingly, without expressing an opinion on the guilt of the accused, the Court concluded that the manner in which the criminal-law mechanisms as a whole had been implemented in the present case, resulting in the disposal of the case on procedural grounds, had been defective to the point of constituting a violation of the respondent State’s positive obligations under Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life) of the Convention. |
896 | Private persons | RELEVANT LEGAL FRAMEWORK 14. The right to protection of a person’s personal integrity is guaranteed by Articles 11 et seq. of the Civil Code (Law no. 40/1964 Coll., as amended). 15. Pursuant to Article 11, natural persons have the right to protection of their personal integrity, in particular their life and health, civil and human dignity, privacy, name and personal characteristics. 16. Article 12 § 1 provides, inter alia, that audio recordings concerning natural persons, or their statements of a personal nature, may only be made or used with the consent of the person concerned. Under paragraph 2 of that Article such consent is not required where the documents or recordings are used for official purposes in accordance with the law. Article 12 § 3 provides that pictures and audio recordings can also be made and used in an appropriate manner, without the consent of the person concerned, for scientific and artistic purposes and also for news reporting by the press, film, radio and television. Such use cannot, however, be contrary to the legitimate interests of the person concerned. 17. Pursuant to Article 13 § 1, all natural persons have the right to apply for an order restraining any unjustified interference with their personal integrity, an order cancelling out the effects of such interference, and an award of appropriate compensation. Article 13 § 2 provides that in cases where the satisfaction afforded under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 18. The applicant complained that the dismissal of his action against the newspaper publisher amounted to a violation of his right to respect for his private life, as guaranteed by Article 8 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.” Admissibility 19. It is clear from the Court’s case-law, and the Government accepted, that Article 8 is applicable in the circumstances of the present case. The applicant’s allegation that his right to protection of his private life was infringed as a result of the publication of the article in question and the photographs raises serious issues of law and fact which require examination on the merits. 20. The Court accordingly concludes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions 21. The applicant was convinced that the domestic courts, by underestimating the importance of his right to respect for his private life and not having it as a central focus, and by considering the case only from the perspective of the publisher’s freedom of expression, had failed to reach a fair balance between the competing rights at stake. 22. While the applicant did not contest that the publisher could legitimately publish an article about surrogacy in order to initiate a public debate, he argued that there had been no pressing social need to illustrate that topic using his own story, which disclosed his identity and private aspects of his life. The publication of his pictures had not, in any manner, contributed to a discussion about surrogacy; its only goal had been to create a scandal about him, cause a sensation and increase the number of readers. 23. Referring to the Court’s case-law, the applicant contended that the duties and responsibilities stemming from Article 10 § 2 of the Convention require that journalists act in good faith in order to provide accurate and verified information in accordance with the ethics of journalism. However, in the instant case, the courts had stated in rulings on his claim against Slovak television that the recordings which had been broadcast in the television report (and subsequently used in the relevant newspaper article) had been acquired unlawfully, and that the television report itself (which had provided a basis for the article) had been broadcast in breach of the law (see paragraph 7 above). That unlawful disclosure of his identity in the initial report could not give anyone permission to publish his pictures, all the more so because such use was contrary to his legitimate interests, but the courts had failed to recognise that argument. The applicant further asserted that, although the publisher must have been aware of the unlawful origin of the material it had intended to publish, it had not tried to ascertain his position or to seek his consent to its publication. 24. Lastly, the applicant emphasised that he had not committed any unlawful actions, therefore the journalist’s accusatory statements calling for his punishment could not be considered as value judgments based on true facts, as submitted by the Government. 25. The Government referred to the Court’s case-law on Article 8 of the Convention but also to the principles established in the field of freedom of expression (citing Ringier Axel Springer Slovakia, a.s. v. Slovakia, no. 41262/05, §§ 94-100, 26 July 2011, with further references), from which it followed that expression protected by Article 10 of the Convention did not amount to an unjustified interference under Article 8. 26. As to the question whether the State had met its positive obligation to protect the applicant’s privacy from interference by a private publishing company, the existence of which interference was not contested, the Government shared the opinion expressed by the domestic courts after having duly assessed all the relevant circumstances of the case. The courts had correctly held that the applicant had brought himself within the public sphere and had attracted public and media attention by publishing the advertisement in which he had announced his private intentions. It was to be emphasised that the newspaper article in question had been published two days after the television report had been broadcast, which report had already revealed the applicant’s identity, and had caused a “public storm”. The Government further concurred with the courts’ conclusions that surrogacy was an issue of public interest which had a moral and ethical dimension. 27. The Government was convinced that, in exercising its freedom of expression, the publisher had complied with its duties and responsibilities within the meaning of the Court’s case-law, since it had acted in good faith and in accordance with the ethics of journalism, with the aim of providing accurate and reliable information. All of the facts mentioned in the article had been based on the applicant’s own advertisement, and the terms used could not be considered as defaming or ridiculing him. The applicant’s assertion that the value judgments expressed in the article had not been based on the truth (see paragraph 24 above) had been refuted by the domestic courts, which had held that they had had a sufficient factual basis (see paragraph 11 above). Moreover, the applicant’s pictures had already been previously revealed in the television report; thus, the publisher had not had any reason to further protect the applicant’s identity and could publish the pictures without the applicant’s consent, with a view to reporting on questions of public interest. 28. The Government therefore contested the argument that the domestic courts had failed to apply standards stemming from the principles established in the Court’s case-law or that they had failed to base their conclusions on an acceptable assessment of the relevant facts. They maintained that the courts had sufficiently reasoned why the protection of the publisher’s freedom of expression outweighed the applicant’s right to respect for privacy, and that they had reached the necessary fair balance between those competing interests. The Court’s assessment (a) General principles 29. The Court observes that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which extends to a number of aspects relating to personal identity, such as a person’s name or image, and furthermore includes a person’s physical and psychological integrity (see, for instance, Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 ‑ VI, and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, ECHR 2017). This concept also includes the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 ‑ IX). A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image presupposes the right to control the use of that image. While in most cases it entails the possibility to refuse publication of the image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 87 and 89, 17 October 2019). 30. Proceeding from the assumption that the present case requires an examination of the fair balance that has to be struck between the applicant’s right to the protection of his private life under Article 8 and the publisher’s right to freedom of expression as guaranteed by Article 10, the Court notes that the principles with respect to the State’s positive obligations and the criteria for balancing the protection of private life against freedom of expression were set out in the Court’s judgment in Von Hannover (cited above, §§ 57-60) and have subsequently been elaborated in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, §§ 95-113, ECHR 2012); Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 78 ‑ 95, 7 February 2012); and Couderc and Hachette Filipacchi Associés v. France ([GC], no. 40454/07, §§ 83-93, ECHR 2015 (extracts)). As identified in those cases, the main criteria of assessment are contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and the circumstances in which photographs were taken. 31. Although freedom of expression includes the publication of photographs, this is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photographs may contain very personal or even intimate information about an individual and his or her family (see Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 30, 16 January 2014, and Dupate v. Latvia, no. 18068/11, § 47, 19 November 2020). In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photographs or articles in the press to a debate of general interest. In its 2004 judgment in Von Hannover (cited above, §§ 60-66) the Court made a distinction between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society, and reporting details of the private life of an individual who does not exercise official functions. While in the former case the press exercises its vital role of a “watchdog” in a democracy by imparting information and ideas on matters of public interest, it does not do so in the latter case. Where the situation does not come within the sphere of any political or public debate and published photographs and accompanying commentaries relate exclusively to details of the person’s private life with the sole purpose to satisfy the curiosity of a particular readership, freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, §§ 60-66, and Couderc and Hachette Filipacchi Associés, cited above, §§ 100-103). (b) Application to the present case 32. The issue in the instant case is whether the domestic courts ensured a fair balance between the protection of the applicant’s private life and the right of the defendant to freedom of expression. In exercising its supervisory function, the Court’s task is to review, in the light of the case as a whole, whether the decisions taken by the domestic courts pursuant to their power of appreciation are in conformity with the criteria laid down in the Court’s case-law. 33. In the circumstances of the present case, the Court considers it appropriate to examine the applicable criteria (see paragraph 30 above) in this specific order: how well-known is the person concerned; the prior conduct of the person concerned and the subject matter of the article; the content, form and consequences of the publication; the contribution to a debate of general interest; the method of obtaining the photographs. (i) How well-known was the applicant, the applicant’s conduct prior to the publication of the article in question and the subject matter 34. The present case differs from the above-cited ones in that the applicant was not a public or newsworthy figure within the meaning of the Court’s case-law (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002, and Reklos and Davourlis v. Greece, no. 1234/05, § 41, 15 January 2009). Nonetheless, the domestic courts pointed in this respect to the applicant’s prior conduct, emphasising the fact that he had decided to enter the public arena by publishing an advertisement aimed at finding a surrogate mother. In their view, he should thus have expected a greater amount of attention from the public, all the more so because his identity had already been revealed in the television report (see paragraphs 11 and 13 above). 35. In that connection, the Court observes, however, that the applicant had not himself sought any public exposure beyond placing an anonymous advertisement in a newspaper. He could not have suspected that by talking to the person who had contacted him as a potential surrogate mother, he was running a risk of being recorded and having his intentions and identity revealed in the media (see, mutatis mutandis, Bremner v. Turkey, no. 37428/06, § 78, 13 October 2015). Thus, the sole fact that the applicant, as an ordinary person, had made use of a newspaper advertisement, which only revealed his readiness to have recourse to commercial surrogacy while promising confidentiality, cannot, in the Court’s view, serve as an argument for reducing the level of the protection that should have been afforded to him under Article 8. 36. Concerning the subject matter, the Court admits that the article, entitled “Trade in unborn children” (see paragraph 6 above), which mainly focused on the applicant’s plan to find a surrogate mother, his reasons for doing so and his meetings with the pretend candidate, also revealed some details of his private life. However, in so far as the article mentioned the involvement of (unnamed) doctors who were to have helped with the assisted reproduction and the falsification of documents, and the lack of legislation regulating that practice, the Court is ready to accept the domestic courts’ conclusion – which was shared by the Government – that the article was aimed at informing people about the controversial public-interest issue of surrogacy. (ii) The content, form and consequences of the article 37. As far as the content and form of the published article are concerned, the Court reiterates that the newspaper published some information about the applicant’s background, his intentions and the content about his negotiations with the pretend surrogate mother. It conveyed a message of indignation about the fact that although trafficking of unborn children was illegal in Slovakia, the applicant could not be punished for his action; the applicant considered that to be an unacceptable accusatory statement. 38. The domestic courts were of the view that the article did not contain any harsh or vulgar expressions which were intended to defame or create scandal about the applicant, and that the critical value judgments contained therein relied on the information which, although not sufficiently precise, was true in substance. 39. The Court observes that the article portrayed the applicant rather in a negative light and that its general tone was not favourable to him. In the circumstances of the present case, and viewed in the light of the previous television report, it does not consider however that this in itself gave rise to a breach of the applicant’s right to respect for his private life. (iii) Contribution to a debate of general interest 40. The Court reiterates that the definition of what constitutes a subject of general interest will depend on the circumstances of the case. Articles intended solely to satisfy the curiosity of a particular readership regarding the details of a person’s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society (see Couderc and Hachette Filipacchi Associés, cited above, §§ 89 and 100, and Standard Verlags GmbH v. Austria (no. 2 ), no. 21277/05, § 52, 4 June 2009.) Furthermore, in the balancing of interests under Articles 8 and 10 of the Convention, the contribution made by photographs or articles in the press is an essential criterion (see Von Hannover, cited above, § 109, with further references). 41. In the instant case, while the domestic courts and the Government contended that the publication in question concerned surrogacy as a matter of public interest having a moral and ethical dimension, the applicant argued that there had been no pressing social need to illustrate that topic by his own story, disclosing his identity and private aspects of his life, and that publication of his photographs had made no contribution to a debate about surrogacy. 42. Assessing the publication as a whole, in the actual context and situation, the Court notes that the article was published two days after the broadcast of a television report of similar content which, according to the Government, had caused a “public storm” (see paragraph 26 above). The article was thus closely linked in time to those events. Although the journalist had added little about the phenomenon of surrogacy in general, the Court is of the view that the article can be considered as having been written as part of a debate which was likely to be of significant interest to the general public. 43. As regards, however, the potential contribution of publishing photographs of the applicant to a public-interest debate, the Court sees nothing in the article in question or in the materials in the case file to substantiate any general interest reasons for the journalist’s decision to include the pictures of the applicant without taking any particular precautions, such as masking his face (see, in that regard, Peck v. the United Kingdom, no. 44647/98, § 80, ECHR 2003 ‑ I). Given, in particular, the fact that the applicant was not known to the public (apart from the previous television report), there is nothing to suggest that the publication in question had any inherent informative value or had been properly and adequately used (see, mutatis mutandis, Gurgenidze v. Georgia, no. 71678/01, §§ 59 and 60, 17 October 2006, and Bremner, cited above, § 80). Nor was the domestic courts’ conclusion that the publication of the photographs was necessary for the purposes of news reporting within the meaning of Article 12 § 3 of the Civil Code substantiated by any relevant and convincing arguments. 44. In that connection, the Court observes that in the case of Haldimann and Others v. Switzerland (no. 21830/09, § 65, ECHR 2015), which concerned sanctions imposed on journalists for broadcasting a hidden ‑ camera recording of an alleged negotiation between an insurance broker and a journalist, the Court found a violation of the applicants’ right to freedom of expression. In order to reach that finding it had considered decisive the fact that the applicants had pixelated the broker’s face and distorted his voice. 45. Thus, while the Court accepts in the present case that the article addressed a matter of public interest (see also paragraphs 36 in fine and 42 in fine above), it considers that the method used for producing the article, notably the publication of large-size photographs of the applicant, can hardly be said to be capable of contributing to any debate on such a matter (see further below). (iv) Circumstances in which the photographs were taken 46. It is not in dispute between the parties that the applicant did not consent to the publication of the photographs and that they had been obtained covertly by a television reporter using a hidden camera. However, although the applicant argued in the domestic proceedings that the photographs had been obtained illegally, for which Slovak television had been convicted, and that the publisher had not acted in good faith but only with the aim of causing a sensation (see paragraph 12 above), it appears from the materials in the case file that this factor was not duly taken into consideration by the domestic courts. 47. In this context, the Court reiterates that the task of imparting information necessarily includes “duties and responsibilities”, as well as limits which the press must impose on itself spontaneously (see Couderc and Hachette Filipacchi Associés, cited above, § 89, and Dupate, cited above, § 47). 48. In the present case, the courts appear to have attached particular importance to the fact that the applicant’s identity had already been revealed in the television report (see paragraph 11 above). The Court admits that the fact that someone’s picture has already appeared in an earlier publication might be considered in the balancing process (see Axel Springer AG, cited above, § 92) and lead to the conclusion that there was no need to restrict the disclosure of an identity (see Egeland and Hanseid v. Norway, no. 34438/04, § 60, 16 April 2009). However, the fact that information is already in the public domain does not necessarily remove the protection of Article 8 of the Convention, especially if the person concerned neither revealed the information nor consented to its disclosure (see, mutatis mutandis, Egeland and Hanseid, cited above, §§ 62-63, 16 April 2009, and N.Š. v. Croatia, no. 36908/13, § 100, 10 September 2020). Indeed, even with respect to a further dissemination of “public information”, the Court has found that the interest in publication of that information had to be weighed against privacy considerations (see Von Hannover, cited above, §§ 74-75 and 77). This is so because privacy is also about preventing intrusion. Thus, notwithstanding that the information in question was already known to the public, a further dissemination of such “public information” had still to be weighed against the applicant’s right to privacy (see, mutatis mutandis, N.Š., cited above, §§ 100 and 111). 49. It has to be emphasised in the case at hand that the applicant could not have expected to be recorded or reported on in a public manner (see paragraph 35 above) and did not voluntarily cooperate with the media; thus, his reasonable expectations as to privacy are a significant, although not necessarily conclusive, factor (see Shabanov and Tren v. Russia, no. 5433/02, § 46, 14 December 2006, with further references). Furthermore, although it had been established in 2007 by the first-instance court and in 2011 by the appellate court that the material concerning the applicant had been obtained illegally by the television reporter, and broadcast in breach of the law (see paragraph 7), the domestic courts did not take that factor into account. Nor did they assess whether the journalist had acted in good faith and with necessary rigour and taking necessary precautions when disseminating material emanating from another source (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 65-66, ECHR 1999 ‑ III; Mihaiu v. Romania, no. 42512/02, § 67, 4 November 2008; and Ringier Axel Springer, cited above, § 106). In the Court’s view, it was indeed clear from the television report that the reporter had contacted the applicant, pretending to be interested in his advertisement, and that she had made the recordings with a hidden camera without the applicant being aware of it or having consented to it. This should have alerted the journalist and the newspaper publisher to the need to use that material with caution and not to disseminate it without masking or blurring the applicant’s face (see also paragraph 43 above). (c) Conclusion 50. Having regard to the foregoing, the Court considers that while the domestic courts did engage in a balancing exercise between the right to private life and freedom of expression, that exercise was not carried out in conformity with the criteria laid down in the Court’s case-law. The assessment of the applicant’s prior conduct was flawed (see Dupate, cited above, § 74) and the manner in which the photographs had been taken was not taken into account (see, conversely, Bild GmbH & Co. KG and Axel Springer AG (dec.), nos. 62721/13 and 62741/13, § 35, 4 December 2018). Most importantly, none of the domestic courts would appear to have assessed the contribution to the public-interest debate of broadcasting images of the applicant without blurring them (see Bremner, cited above, § 83). 51. In these circumstances, and notwithstanding the margin of appreciation allowed to the domestic courts in this field, the Court concludes that the State has failed to fulfil its positive obligations under Article 8 of the Convention. 52. There has accordingly been a violation of Article 8 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 53. Relying on Article 6 § 1 of the Convention, the applicant complained of insufficient reasoning of the domestic courts’ decisions. 54. Having regard to the grounds on which it has found a violation of Article 8 of the Convention (see paragraphs 50-51 above), the Court considers that, while this complaint is admissible, no separate issue arises under Article 6 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 55. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 56. The applicant claimed 16,596.95 euros (EUR) in respect of non ‑ pecuniary damage, which corresponded to the amount awarded to him by the domestic courts in similar proceedings (see paragraph 7 above). 57. The Government contested the claim as being overstated and requested that, should the Court find any violation of the applicant’s Convention rights, any just satisfaction be awarded in an adequate amount. 58. The Court considers that, in the particular circumstances of the present case, the finding of a violation of Article 8 of the Convention constitutes sufficient just satisfaction for the applicant. Costs and expenses 59. The applicant also claimed EUR 10,572 for the costs and expenses incurred before the domestic courts, including the costs which he had to reimburse to the defendant, and EUR 419 for those incurred before the Court. 60. The Government objected that the applicant had only proved the payment of the court fees amounting to EUR 1,559 and had not substantiated the rest of his claim with any relevant documents. 61. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum claimed for the fees incurred before the domestic courts, and for the costs paid to the defendant, that is to say EUR 6,030. It also considers it reasonable to award the sum claimed for the representation of the applicant before the Court, namely EUR 419. Default interest 62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that, notwithstanding the margin of appreciation allowed to the domestic courts in this field, the Slovakian State had failed to fulfil its positive obligations under that provision. Bearing in mind, in particular, the flawed assessment of the applicant’s prior conduct, the failure to consider the manner in which the photographs had been taken and, most importantly, to assess the contribution to the public-interest debate of broadcasting non-blurred images of the applicant, the Court considered that the domestic courts had not exercised the balancing exercise between the competing rights in line with the Court’s case-law criteria. The Court also noted that the applicant had not been a public or newsworthy figure within the meaning of the Court’s case-law, had not sought any public exposure beyond placing the advertisement, nor could he have suspected that by talking to the person who had contacted him as a potential surrogate mother, he had run a risk of being recorded and having his intentions and identity revealed in the media. |
40 | Applications lodged by the parent whose child had been abducted by the other parent | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution 76. The relevant provisions of the 1991 Constitution provide: Article 11(2) “Treaties lawfully ratified by Parliament shall form an integral part of the domestic legal order.” Article 20 “(1) The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party. (2) In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.” B. Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction 77. The relevant provisions of the Hague Convention read as follows: Article 7 “Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures: (a) To discover the whereabouts of a child who has been wrongfully removed or retained; (b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) To exchange, where desirable, information relating to the social background of the child; (e) To provide information of a general character as to the law of their State in connection with the application of the Convention; (f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; (g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; ( i ) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...” C. Family Code 78. Article 108 of the Family Code provides: “The supervisory authority [ autoritatea tutelară ] must continuously and effectively supervise the manner in which the parents discharge their obligations concerning the person and property of the child. The delegates of the supervisory authority shall be entitled to visit children in their homes and to inform themselves by all available means about the manner in which the persons in charge of them look after them, about their health and physical development, their education ...; if need be, they shall give the necessary instructions.” D. Criminal Code 79. Article 307 of the Criminal Code provides: “It shall be an offence punishable by one to three months' imprisonment or a fine for one of the parents of an under-age child to detain it without the permission of the other parent ... who lawfully has responsibility for the child. The same penalty shall be incurred by a person to whom parental responsibility has been given by a judicial decision who repeatedly prevents one of the parents from having personal relations with an under-age child on the terms agreed by the parties or laid down by the appropriate body. Criminal proceedings may only be instituted if a criminal complaint has first been lodged by the victim. No criminal liability shall be incurred where there has been a reconciliation between the parties.” E. Code of Criminal Procedure 80. The relevant provisions of the Code of Criminal Procedure read as follows: Article 279 “As regards the offences in respect of which the law requires a criminal complaint to be lodged beforehand, proceedings may only be instituted after a complaint by the victim. The complaint shall be lodged: ... (b) with the body in charge of criminal investigations or with the public prosecutor, in respect of offences other than those referred to in sub-paragraph (a). ...” Article 284 “Where the law requires a criminal complaint to be lodged beforehand, that complaint must be lodged within two months from the date on which the victim discovered the identity of the person who committed the offence...” Article 285 “Where a preliminary criminal complaint is improperly lodged with the public prosecutor's office or the court, it shall be forwarded to the appropriate body. In that event, it shall be regarded as valid if it was lodged with the wrong body within the time allowed by law.” F. Code of Civil Procedure 81. The relevant provisions of the Code of Civil Procedure read as follows: Article 67 “The parties may exercise their procedural rights in person or through a representative. A representative with general authority to act may only represent the person for whom he acts before a court if he has been expressly given the right to do so. If the person who has given the authority to act has no permanent or temporary home in Romania ..., he shall be presumed to have also given authority to represent him in the courts.” Article 87 “... 8. Unless otherwise provided in a treaty, international convention or special law, persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail... In all cases in which those who are abroad have a known representative in Romania, the latter shall be summoned...” Article 107 “Whenever the presiding judge finds that an absent party has not been lawfully summoned, he must adjourn the case, failing which the proceedings will be null and void.” G. Administration of Justice (Amendment) Act (Law no. 142 of 24 July 1997) 82. The relevant provisions of Law no. 142 of 24 July 1997 amending the Administration of Justice Act (Law no. 92/1992) read as follows: Section 30 “The interests of the State shall be represented by State Counsel organised in departments at each court, under the authority of the Minister of Justice. The work of State Counsel shall be organised in accordance with the principles of the rule of law, impartiality and hierarchical supervision. ...” Section 31( i ) “State Counsel's Office shall have the following duties: ... – defending the rights and interests of minors and persons deprived of legal capacity.” Section 38 “The Minister of Justice shall supervise all State Counsel through State Counsel inspectors attached to the Supreme Court of Justice and the courts of appeal or through other, delegated State Counsel. Where he considers it necessary, the Minister of Justice, either of his own motion or at the instance of the National Judiciary Council, effects his supervision through inspectors-general or State Counsel on secondment... ... The Minister of Justice may ask Principal State Counsel at the Supreme Court of Justice for information about the work of State Counsel's offices and may give advice on measures to be taken to combat crime. The Minister of Justice is empowered to give State Counsel written instructions, either direct or through Principal State Counsel, to institute, in accordance with the law, criminal proceedings for offences that have come to his knowledge; he may also have actions and proceedings brought in the courts that are necessary for the protection of the public interest. ...” H. Practice in respect of service of summonses 83. In decision no. 87 delivered in 1993 the Supreme Court of Justice again confirmed its settled case-law on summoning persons resident abroad, which requires service to be effected at the foreign home but also at the Romanian home of any representative. Legal writers, for their part, highlight the compulsory requirement of serving a summons on the person concerned at his foreign home, even where he has a representative in Romania ( Viorel Mihai Ciobanu, Tratat Teoretic şi Practic de Procedură Civilă (“Theoretical and Practical Treatise on Civil Procedure”), vol. II, p. 94, Bucharest, 1997). 84. The courts have consistently held that the legal provisions governing summonses are mandatory as they are designed to ensure compliance with the adversarial principle and due process. If these provisions are not complied with, the decision will be null and void and it will be quashed and the case remitted to the tribunal of fact (Bucharest County Court, Third Civil Division, decision no. 226/1990, Culegere de Jurisprudenţă Civilă a Tribunalului Judeţean Bucureşti (“Reports of Criminal Cases in the Bucharest County Court”), no. 155, p. 123, Bucharest, 1992; Supreme Court of Justice, Civil Division, decision no. 779 of 6 April 1993, Buletinul de Jurisprudenţă al Curţii Supreme de Justiţie (“Supreme Court of Justice Case-Law Bulletin”) for 1993, p. 126, Bucharest, 1994). PROCEEDINGS BEFORE THE COMMISSION 85. Mrs Ignaccolo-Zenide applied to the Commission on 22 January 1996. She alleged that, contrary to Article 8 of the Convention, which guarantees the right to respect for family life, the Romanian authorities had not taken measures to ensure execution of the court decisions whereby custody of the children was split between herself and her former husband and they were to live with her. 86. The Commission (First Chamber) declared the application (no. 31679/96) admissible on 2 July 1997. In its report of 9 September 1998 (former Article 31 of the Convention) [1], it expressed the opinion that there had been a violation of Article 8 (unanimously). FINAL SUBMISSIONS TO THE COURT 87. In their memorial the Government requested the Court to find that they had discharged the positive obligations on them under Article 8 of the Convention and that there had consequently been no violation of that provision. 88. The applicant asked the Court to hold that there had been a violation of Article 8 of the Convention and to award her just satisfaction under Article 41. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 89. The applicant alleged that the Romanian authorities had not taken sufficient steps to ensure rapid execution of the court decisions and facilitate the return of her daughters to her. The authorities had thus breached Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 90. The applicant complained, in particular, of the half-hearted attempts made to execute the order of 14 December 1994, which she described as “pretences”, and pointed out that nothing had been done to find her daughters, who had been hidden by their father each time before the bailiff arrived. As to the meeting arranged by the authorities on 29 January 1997, she considered that in view of the circumstances in which it had taken place, it was just another pretence. She also criticised the Romanian authorities for their total inactivity between December 1995 and January 1997. 91. The Government maintained that the authorities in question had taken adequate and effective steps to have the order of 14 December 1994 executed, for example by arranging for the bailiff to be assisted by police officers and by summoning the children's father to the Ministry of Justice. They pointed out that the failure to execute the decision was due firstly to non-compliance by the father, for whose behaviour the Government could not be held responsible, and secondly to the children's refusal to go and live with the applicant, again a matter for which the Government could not be blamed. 92. In the Commission's view, the national authorities had neglected to make the efforts that could normally be expected of them to ensure that the applicant's rights were respected, thereby infringing her right to respect for her family life as guaranteed by Article 8 of the Convention. 93. The Court notes, firstly, that it was common ground that the tie between the applicant and her children was one of family life for the purposes of that provision. 94. That being so, it must be determined whether there has been a failure to respect the applicant's family life. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are in addition positive obligations inherent in an effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, § 49). As to the State's obligation to take positive measures, the Court has repeatedly held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action (see, for example, the following judgments : Eriksson v. Sweden, 22 June 1989, Series A no. 156, pp. 26-27, § 71; Margareta and Roger Andersson v. Sweden, 25 February 1992, Series A no. 226-A, p. 30, § 91; Olsson v. Sweden (no. 2), 27 November 1992, Series A no. 250, pp. 35-36, § 90; and Hokkanen v. Finland, 23 September 1994, Series A no. 299-A, p. 20, § 55). However, the national authorities' obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see the Hokkanen judgment cited above, p. 22, § 58). 95. Lastly, the Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). This is all the more so in the instant case as the respondent State is also a party to that instrument, Article 7 of which contains a list of measures to be taken by States to secure the prompt return of children. 96. What is decisive in the present case is therefore whether the national authorities did take all steps to facilitate execution of the order of 14 December 1994 that could reasonably be demanded (ibid.). A. Period to be taken into consideration 97. The Government maintained that their obligation to take steps to facilitate the reunion of the applicant and her children had arisen out of the order made on an urgent application by the Bucharest Court of First Instance on 14 December 1994 and had come to an end with the final decision of 28 May 1998 whereby the Bucharest Court of Appeal gave parental responsibility to D.Z. 98. The applicant disputed the Government's submission and argued that the decision of 28 May 1998 had never been brought to her knowledge and that she was unaware of its content. She also denied having appointed a representative to represent her in the proceedings that led to the aforementioned decision and submitted that as she had not been a party to the proceedings, the decision in question had been given in breach of the adversarial principle and could not be relied on against her. Lastly, she disputed that the Romanian courts were competent to take a decision on the merits in respect of parental responsibility and argued that under Article 16 of the Hague Convention, the French courts had exclusive jurisdiction in the matter. In that connection, she pointed out that D.Z. had brought an action in the Romanian courts to vary the arrangements for exercising parental responsibility although an identical action was already pending in the French courts, likewise on his initiative. 99. The Court must therefore determine whether the authorities' obligation to take steps to facilitate the execution of the order of 14 December 1994 ceased after the judgment of 28 May 1998 giving parental responsibility to D.Z. The Court points out that in its judgment of 24 February 1995 in the McMichael v. the United Kingdom case (Series A no. 307-B, p. 55, § 87) it held that, although Article 8 contained no explicit procedural requirements, “the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8: '[W]hat ... has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.' (see the ... W. v. the United Kingdom judgment [of 8 July 1987, Series A no. 121-A], pp. 28 and 29, §§ 62 and 64)”. The Court notes, firstly, that neither the applicant nor any representative of hers was present at the delivery of the Bucharest Court of Appeal's judgment of 28 May 1998, nor was that judgment served on the applicant. Not until 13 September 1999, when the Government submitted it to the Court, was the applicant able to study the judgment in question. Secondly, the applicant was not present at any of the hearings held during the course of the proceedings which led to the decision in issue. It appears from the documents produced by the Government that, contrary to Article 87 § 8 of the Romanian Code of Civil Procedure, no summons was served on the applicant at her home in France, although her address was known. As regards the notification served on Ştefan Constantin, the Court notes that it was not a substitute for the notification to the applicant required by Article 87 § 8 in fine of the Code of Civil Procedure and the settled case-law of the domestic courts (see paragraph 83 above). 100. In the light of those circumstances, the Court considers that the proceedings that led to the Bucharest Court of Appeal's decision did not satisfy the procedural requirements of Article 8 of the Convention. Consequently, it cannot consider that the aforementioned decision put an end to the Government's positive obligations under Article 8. B. Enforcement of the applicant's right to parental responsibility and to the return of the children 101. The Court must therefore determine whether the national authorities took the necessary adequate steps to facilitate the execution of the order of 14 December 1994. 102. In a case of this kind the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the granting of parental responsibility, including execution of the decision delivered at the end of them, require urgent handling as the passage of time can have irremediable consequences for relations between the children and the parent who does not live with them. In the instant case this was all the more so as the applicant had brought an urgent application in the courts. The essence of such an application is to protect the individual against any damage that may result merely from the lapse of time. The Court notes that Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay. 103. In the instant case bailiffs went to D.Z.'s home on four occasions between December 1994 and December 1995. While the initial attempts at execution took place immediately after the order of 14 December 1994, on 22 and 27 December 1994, the same cannot be said of the subsequent attempts: the third visit from the bailiffs did not take place until four months later, on 10 May 1995, and the last visit was on 4 December 1995. The Court notes that no satisfactory explanation was put forward to justify those delays. Similarly, it has difficulty in discerning the reasons why the Bucharest County Court decided to stay execution of the order between 30 June and 1 September 1995. 104. Furthermore, the Court notes that the Romanian authorities were totally inactive for more than a year, from December 1995 to 29 January 1997, when the only meeting between the applicant and her children took place. No explanation for this was provided by the Government. 105. For the rest, it observes that no other measure was taken by the authorities to create the necessary conditions for executing the order in question, whether coercive measures against D.Z. or steps to prepare for the return of the children. 106. Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live. 107. The Government alleged that such measures could only have been taken at the instance of the applicant, but she had not made any application to that end. In particular, she could have brought an action in a civil court, under Article 1075 of the Civil Code, for a fine to be imposed for every day's delay in the execution of the order of 14 December 1994, or she could have lodged a criminal complaint with the appropriate bodies for failure to comply with the parental-responsibility measures. 108. The Court is not required to examine whether the domestic legal order allowed of effective sanctions against D.Z. It is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention. The Court's sole task is to consider whether in the instant case the measures taken by the Romanian authorities were adequate and effective. 109. It notes in this connection that D.Z.'s failure to go to the Ministry of Justice on 11 or 15 May 1995 as requested did not have any consequences for him. Similarly, the Romanian authorities imposed no penalty on him after his refusal to present the children to the bailiffs. Furthermore, they took no initiative to try to ascertain the children's whereabouts. 110. As to the alleged failure to lodge a criminal complaint, which was necessary to trigger proceedings against D.Z., the Court notes that in a letter of 23 December 1994 the applicant indicated to the Minister of Justice that she wished to lodge a criminal complaint against D.Z. and, having set out the grounds for the complaint, asked him to do what was necessary. No action was taken on that letter, however. The Court observes that under sections 30 and 38 of the Administration of Justice (Amendment) Act, State Counsel's offices are under the authority of the Minister of Justice, who has the power to give instructions to State Counsel. That being so, it regards the Government's argument that the applicant did not lodge a criminal complaint with the appropriate body as being invalid. 111. Inasmuch as the Government criticised the applicant for not having applied for an order imposing a daily fine, the Court considers that such an action cannot be regarded as effective, since it is an indirect and exceptional method of execution. Furthermore, the applicant's omission could not have absolved the authorities from their obligations in the matter of execution, since it is they who exercise public authority. 112. Nor was any preparatory contact between the social services, the applicant and the children arranged by the authorities, who also failed to seek the assistance of psychologists or child psychiatrists (see, mutatis mutandis, the Olsson (no. 2) judgment cited above, pp. 35-36, §§ 89-91). The social services, for instance, despite having sufficient relevant powers under Article 108 of the Family Code, only met the children in connection with the proceedings for transfer of parental responsibility (see paragraphs 38 and 44 above) and did no more than make purely descriptive inquiry reports. Apart from the one on 29 January 1997, no meeting between the applicant and her children was arranged by the authorities, although the applicant had travelled to Romania on eight occasions in the hope of seeing them. As to the meeting on 29 January 1997, which, the Court stresses, took place one year after the present application was lodged with the Commission and two years after the interim order of 14 December 1994, it was not, in the Court's view, arranged in circumstances such as to encourage a positive development of the relations between the applicant and her children. It took place at the children's school, where their father was a teacher, in the presence of a large group of people consisting of teachers, civil servants, diplomats, policemen, the applicant and her lawyer (see paragraph 70 above). No social workers or psychologists had been involved in the preparation of the meeting. The interview lasted only a few minutes and came to an end when the children, who were clearly not prepared in any way, made as if to flee (see paragraphs 71-72 above). On 31 January 1997, immediately after the failure of that one and only meeting, the Romanian Ministry of Justice, acting as Central Authority, ordered that the children should not be returned, on the ground that they were refusing to go and live with their mother (see paragraph 73 above). Since that date no further attempt has been made to bring the applicant and her children together. 113. The Court notes, lastly, that the authorities did not take the measures to secure the return of the children to the applicant that are set out in Article 7 of the Hague Convention. Having regard to the foregoing, and notwithstanding the respondent State's margin of appreciation in the matter, the Court concludes that the Romanian authorities failed to make adequate and effective efforts to enforce the applicant's right to the return of her children and thereby breached her right to respect for her family life, as guaranteed by Article 8. There has consequently been a violation of Article 8. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 114. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 115. Mrs Ignaccolo-Zenide sought 200,000 French francs (FRF) in compensation for the non-pecuniary damage due to the anxiety and distress she had experienced on account of the failure to enforce her parental rights. 116. The Government did not express a view. 117. The Court considers that the applicant must indeed have sustained non-pecuniary damage. Having regard to the circumstances of the case and making its assessment on an equitable basis as required by Article 41, it awards FRF 100,000 under this head. B. Costs and expenses 118. The applicant also claimed reimbursement of the sum of FRF 86,000, which she broke down as follows: (a) FRF 46,000 for costs and expenses relating to the domestic proceedings, comprising FRF 6,000 for her lawyer's fees in Romania and FRF 40,000 for the travel and subsistence expenses she had to incur for her eight journeys to Romania; (b) FRF 40,000 for fees payable to the lawyer who had represented her at Strasbourg, in accordance with a fee agreement concluded on 15 July 1998. 119. The applicant requested the Court to add to that sum “any value-added tax”. 120. The Government made no submissions. 121. The Court considers that the expenses relating to the steps taken in Romania and at Strasbourg to prevent or redress the situation it has held to be contrary to Article 8 of the Convention were incurred necessarily; they must accordingly be reimbursed in so far as they do not exceed a reasonable level (see, for example, the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, p. 43, § 104). The Court awards the applicant for costs and expenses the sum of FRF 86,000, together with any value-added tax that may be chargeable. C. Default interest 122. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.47% per annum. | The European Court of Human Rights held that there had been a violation of Article 8 of the European Convention on Human Rights, finding that the Romanian authorities had failed to make adequate and effective efforts to enforce the applicant’s right to the return of her children and had thereby breached her right to respect for her family life. The Court observed in particular that the authorities had not taken the measures to secure the return of the children to the applicant that are set out in Article 7 of the Hague Convention of 25 October 1980. |
545 | Violent acts by private individuals | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 114. Article 1 § 2 provides that: “The Slovak Republic acknowledges and adheres to general rules of international law, international treaties by which it is bound, and its other international obligations.” 115. In so far as relevant, Article 15 stipulates that: “1. Everyone has the right to life. [ ... ] 2. No one shall be deprived of life. ... 3. No infringement of rights according to this Article shall occur if a person has been deprived of life in connection with an action not defined as unlawful under the law.” 116. Article 21 § 1 provides that: “The home shall be inviolable. Entry without the consent of the person living there is not permitted.” 117. Article 46 § 1 of the Constitution reads as follows: “Everyone may claim his or her right by procedures laid down by an act of parliament before an independent and impartial court of law or, in cases provided for by an act of parliament, before another organ of the Slovak Republic .” 118. Pursuant to Article 127: “1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person ’ s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act, and shall quash such a decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.” B. The Constitutional Court Act 119. Article 31a reads as follows: “Unless this Act provides otherwise or it is excluded by the nature of the matter, the proceedings before the Constitutional Court shall be subject to application mutatis mutandis of the provisions of the Code of Civil Procedure and the Code of Criminal Procedure.” 120. Under the relevant part of section 53(1) and (2) : “ 1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant ’ s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute [such as the Civil Procedure Code and the Administrative Procedure Code]. 2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under paragraph 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition due to reasons worthy of particular consideration.” C. Code of Criminal Procedure (as in force at the relevant time) 121. The purpose of the CCP is defined in its Article 1 § 1 as follows: “The purpose of the [CCP] is to regulate actions of the agencies involved in criminal proceedings with a view to establishing properly whether criminal offences have been committed and to punishing perpetrators lawfully and justly. The proceedings must work for reinforcement of compliance with the law, for prevention and obstruction of crime, [and] for the education of citizens in the spirit of consistent compliance with the law and rules of civic coexistence, as well as honest fulfilment of duties towards the State and the society.” 122. The fundamental principles of criminal proceedings are laid down in Article 2, the relevant parts of paragraphs 3 and 5 of which provide: “3. The prosecutor is duty bound to prosecute all criminal offences of which [he or she] has been apprised; any exception is permissible only under statue or a promulgated international treaty. 5. The agencies involved in criminal proceedings shall proceed so that the facts of the matter are duly established, to the extent which is absolutely necessary for their decision. With equal care, they shall elucidate circumstances both against and in favour of the charged person and, in both respects, they shall take and examine evidence without awaiting the parties ’ proposals. ... ” 123. The role of victims of crimes in criminal proceedings is defined in section ( Oddiel ) five of chapter ( Hlava ) two in part ( Časť ) one. The relevant part of its Article 43 § 1 provides as follows: “1. A victim is a person upon whom a criminal offence has inflicted health damage, property damage, non-pecuniary damage or other damage or it has violated or jeopardised [his or her] rights or freedoms protected by law. A victim has ... the right to lodge [in the proceedings] [his or her] claim for damages; to propose that evidence be taken, examined and completed; to take part in the hearing, ...; to comment on the evidence taken and examined ...; and to make use of legal remedies to the extent defined by the CCP ... 2. A victim who has a lawful claim against a person facing charges for compensation in respect of damage inflicted [on the victim] by a criminal offence, shall be entitled to propose that, in a judgment leading to conviction, the court should impose a duty on the accused to compensate for that damage. The proposal shall be made at the latest during the main court hearing before the presentation of evidence. The proposal has to be clear as to the ground and the amount of damages claimed. ” 124. Section 3 of Chapter 3 in Part 1 contains rules concerning the making of and dealing with applications, the relevant part of its Article 59 § 1 providing that: “An application shall be assessed according to its content, irrespective of whether it is incorrectly named.” 125. Section 2 of Chapter 6 in Part 1 lays down rules concerning decisions ( uznesenie ), paragraph 134, the relevant part of which is cited below, defining the attributes, structure and content of a decision: “1. A decision must contain ... e) information about available remedies.” 126. Chapter 7 in Part 1 regulates interlocutory appeals against decisions, their admissibility being defined in Article 141, the relevant part of which provides: “1. A remedy in respect of decisions consists of an interlocutory appeal. 2. An interlocutory appeal shall be available against any decision of an investigator or a police authority except for a decision on the opening of a criminal prosecution (Article 160). A decision by a court or by a prosecutor may be challenged by an interlocutory appeal only in those instances where the statute expressly so provides and if [a matter] is being decided on at first instance.” 127. Article 142 contains locus standi for such appeals, as follows : “1. Unless provided for otherwise by a statute, an interlocutory appeal may be lodged by a person who is directly affected by the [impugned] decision or who has prompted the decision by a request which [the appellant] was entitled to make by law ... .” 128. Section 2 of Chapter 10 in Part 2 regulates investigations, Article 167 providing for the possibility of having an investigator ’ s actions reviewed, in the following terms: “The person facing charges and the victim shall have the right at any time in the course of the investigation to demand that a prosecutor [ ensure ] that delays in the investigation or shortcomings on the part of the investigator be eliminated. The right to make such a demand shall not be restricted by any time-limit. This demand, which must be submitted to the prosecutor at once, must be dealt with by the prosecutor without delay. The outcome of the review must be notified to the person making the demand. ” 129. Section 4 of Chapter 10 in Part 2 deals with decisions at the preliminary stage of the proceedings, the relevant part of Article 173 providing that: “1. An investigator shall suspend criminal proceedings ... (e) if it has been impossible to identify evidence allowing for the prosecution of a particular person ... 3. Prior to suspending criminal proceedings everything needs to be done which is necessary for securing a successful completion of a criminal prosecution. Should there no longer be any reason for the suspension, the criminal proceedings shall be resumed. ” 130. Section 5 of Chapter 10 in Part 2 regulates the prosecutor ’ s supervision of adherence to lawfulness in pre-trial proceedings, the relevant part of Article 174 providing that: “1. Supervision of lawfulness in pre-trial proceedings shall be carried out by the prosecutor. 2. While carrying out this supervision, the prosecutor shall have the power: (a) to give binding instructions for the investigation of criminal offences ... (c) to take part in activities carried out by an investigator or a police authority or directly to take a particular action, to carry out the entire investigation and to take a decision on any matter whereby the provisions of [the CCP] normally applicable to an investigator shall apply to the prosecutor mutatis mutandis and, as a decision of an investigator, the decision by the prosecutor shall be challengeable by an interlocutory appeal.” D. Public Prosecution Service Act (as in force at the relevant time) 131. The Act entered into force on 1 May 2001, replacing previous legislation (Law no. 314/1996 Coll., as amended). The object of the Act is defined in its section 1, which reads as follows: “1. This Act determines the status and jurisdiction of the Public Prosecution Service, the status and jurisdiction of the Prosecutor General, the status of other prosecutors, organisation and administration of the Public Prosecution Service. 2. The status of prosecutors; their rights and obligations; the establishment, modification and termination of [their] service relationship and the claims ensuing from it; the relationships of responsibility; disciplinary proceedings and self ‑ governance of prosecutors shall be subject to a special statute.” 132. Petitions to the PPS are regulated by Part ( Časť ) four of the Act. Pursuant to the relevant part of its section 31: “ 1. A prosecutor may examine the lawfulness of actions and decisions of bodies of public administration, prosecutors, investigators, police authorities and courts in so far as a statute so provides, including upon a petition, and is entitled to take measures to rectify established violations, provided [such measures] do not fall under a special statute within the exclusive jurisdiction of other bodies. 2. A petition is understood as a written or oral demand, proposal or other submission by an individual or a legal entity, which is aimed at a prosecutor taking a measure within [the prosecutor ’ s] jurisdiction, in particular lodging an application for proceedings to commence before a court, or submitting a remedy, joining existing proceedings, or taking other measures for rectification of a violation of the law, which fall within [the prosecutor ’ s] jurisdiction. ” 133. The relevant part of section 33 provides that: “1. A prosecutor is duty bound to process a petition within two months of its introduction ... 2. A prosecutor shall notify a petitioner within the period specified in subsection 1 of the manner in which the petition has been resolved. [ ... ]” 134. Section 34 deals with repeated petitions and further repeated petitions. Its relevant part reads as follows: “1. A petitioner may demand a review of the lawfulness of how the petition has been resolved by means of a repeated petition, which shall be dealt with by a prosecutor at a higher level. 2. A further repeated petition shall be dealt with by a prosecutor at a higher level only if it contains new information. A further repeated petition is understood to be a third and any further consecutive petition, in which the petitioner expresses discontent with the manner in which [his or her] petitions in the same matter have been resolved. ” 135. Under the relevant part of section 35: “ 1. In dealing with a petition, a prosecutor is duty bound to examine all circumstances decisive for the assessment of whether there has been a violation of the law; whether the conditions are fulfilled for lodging an application for proceedings before a court to commence or for submitting a remedy; or whether [the prosecutor] may join existing proceedings before a court or take other measures which [the prosecutor] is entitled to take under [the Public Prosecution Service Act].” 2. The prosecutor assesses the petition according to its content ... 3. If the prosecutor establishes that a petition is well founded, [he or she] shall take measures for rectification of the violation of law pursuant to [the Public Prosecution Service Act] or a special statute. ” E. Constitutional Court practice 136. In a decision of 13 December 2001 (in case no. III. ÚS 123/0 1 ) the Constitutional Court declared inadmissible a submission, in which an individual had complained that criminal proceedings against him had been too lengthy and that they, as well as a warrant for his arrest, had been unjustified. In rejecting the claim, the Constitutional Court held that, in respect of the criminal proceedings as such, it was for the applicant first to seek redress from the investigator or the supervising prosecutor by the means available under the CCP and, as the case might be, also from a higher level of the PPS by means available under the PPS Act. As to the arrest warrant, it was for the applicant to assert his rights before the ordinary courts. 137. In a decision of 20 November 2002 (in case no. I. ÚS 143/02) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which an individual had contested the way the PPS had handled his complaint concerning interference with his correspondence by prison authorities. In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek it from a higher level of the PPS by means of a repeated petition under section 34(1) of the Public Prosecution Service Act. 138. In a decision of 2 July 2003 (in case no. III. ÚS 155/03) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution in which an individual had contested a decision of the PPS quashing a previous decision of an investigator to restore to the applicant cash and objects retained in the context of criminal proceedings against him. In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek it from a higher level of the PPS by means of a petition under section 31 of the PPS Act, irrespective of the fact that the decision was not subject to appeal under the CCP. 139. In a decision of 28 April 2004 (in case no. III. ÚS 127/04) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which an individual had contested a decision by the PPS to reject an interlocutory appeal by the complainant against a decision of a lower level of the PPS to discontinue proceedings in the complainant ’ s criminal complaint concerning an alleged violation of the privacy of a home. In that case, the interlocutory appeal had been rejected because, being in the procedural position of a victim, the complainant had no standing to appeal. In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek a review of the decision at the highest level of the PPS, that is to say the Prosecutor General, under sections 31 to 36 of the PPS Act. At the same time, the Constitutional Court observed that no grounds had been established for exempting the complainant from the obligation to use that remedy. 140. The principles stemming from the Constitutional Court ’ s decisions mentioned above were applied mutatis mutandis in the Constitutional Court ’ s subsequent decisions of 26 May 2004 (in case no. IV. ÚS 179/04) and 24 May 2007 (in case no. IV. ÚS 126/07). 141. Meanwhile, on 7 July 2006 (in case no. II. ÚS 223/06), the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution of 14 June 2006, in which a group of individuals had contested the outcome of the proceedings concerning their criminal complaint of an alleged abuse of official authority in connection with the termination of their service in the police. The Constitutional Court observed that the complainants ’ criminal complaint had been rejected on 21 July 2005 and that their interlocutory appeal to the PPS had been dismissed on 29 September 2005. The Constitutional Court found that, as the constitutional complaint had been lodged on 14 July 2006, it had clearly been lodged outside the statutory two-month time-limit for lodging such a complaint. The Constitutional Court held that the position had not been altered by the subsequent decisions at a higher level of the PPS to dismiss the complainants ’ petition and repeated petition for re ‑ examination of the lawfulness of the decision of 29 September 2005. In reaching that conclusion, the Constitutional Court observed that the complainants ’ petition and repeated petition had been aimed at having a complaint in the interest of law ( sťažnosť pre porušenie zákona ) lodged by the Prosecutor General on their behalf, which was however an extraordinary remedy, and a negative decision : accordingly it did not restart the running of the two-month time-limit. F. Criminal Code (as in force at the relevant time) 142. The offence of violence against a group of citizens and against an individual is defined in Article 196, the relevant part of which reads as follows: “1. He who threatens a group of citizens with killing, causing bodily harm or causing damage on a large scale ( škoda veľkého rozsahu ) shall be punished by imprisonment for up to one year. 2. He who perpetrates violence against a group of citizens or an individual or threatens them with death, causing bodily harm or causing damage on a large scale on account of political belief, nationality, race, affiliation to an ethnic group, religion or because they are without religion, shall be punished by imprisonment for up to two years.” 143. The offence of causing bodily harm is defined in Article 221, the relevant part of which provides that: “ 1. He who intentionally causes bodily harm to another ’ s health shall be punished by imprisonment for up to two years or by a financial penalty. ” 144. Article 238 defines the offence of violating the privacy of a home, its relevant part reading as follows: “1. He who enters a house or a flat of another without authority to do so or remains there unauthorised shall be punished by imprisonment for up to two years or by a financial penalty ... 3. The perpetrator who, in committing the act referred to in section 1, applies violence or a threat of immediate violence and commits such an act with a weapon or with at least two others shall be punished by imprisonment for between one year and five years. 145. The offence of criminal damage is defined in Article 257, the relevant part of which provides that: “ 1. He who destroys, damages or makes unusable something belonging to someone else and thereby causes a non-negligible damage ( škoda nie nepatrná ) to someone else ’ s property shall be punished by imprisonment for up to one year or interdiction of an activity or a financial penalty or forfeiture of an item of property .” III. RELEVANT INTERNATIONAL PRACTICE A. The Committee on the Elimination of Racial Discrimination 1. Anna Koptova v. Slovak Republic, Communication No. 13/1998, U.N. Doc. CERD/C/57/D/13/1998 (2000). 146. The communication was considered by the Committee in an Opinion adopted at its meeting on 8 August 2000. 147. The case concerned difficulties that the petitioner and several other families, being of Roma ethnic origin, had been experiencing with settling down and establishing a home and, in particular, two municipal resolutions forbidding the families in question from settling in the villages concerned and threatening them with expulsion. The petitioner unsuccessfully complained about the municipal resolutions before the Constitutional Court and a criminal investigation into the matter was suspended, by a decision of the PPS. 148. In defending the case, the State party concerned argued, inter alia, that the petitioner had the opportunity to contest the decision to suspend the investigation under the PPS Act of 1996 (see paragraph 131 above) and to assert her rights by way of an action for protection of her personal integrity under Articles 11 et seq. of the Civil Code (see paragraphs 4. 4 and 4. 6 of the Opinion). 149. The Committee, however, “did not share the State party ’ s view that domestic remedies had not been exhausted and considered that neither a new petition to the Constitutional Court nor a civil action would be effective remedies in the circumstances of the case” (see paragraph 6.4 of the Opinion). 2. Miroslav Lacko v. Slovak Republic, Communication No. 11/1998, U.N. Doc. CERD/C/59/D/11/1998 (2001) 150. The communication was considered by the Committee in an Opinion adopted at its meeting on 9 August 2001. 151. The case concerned a Slovak national, who had been refused service in a restaurant and was told to leave on account of his Roma ethnic origin, and an alleged failure by the State party to sanction or remedy this treatment. Following investigation upon the petitioner ’ s criminal complaint in that respect, the police found that there was no evidence that any criminal offence had been committed. Upon the petitioner ’ s appeal to the PPS, the decision was upheld. 152. In defending the case, the State party concerned argued, inter alia, that the petitioner had the opportunity to seek a review of the lawfulness of the position taken by the public prosecution service at a higher level in that body under the PPS Act of 1996 (see paragraph 131 above) and of asserting his rights by way of an action for protection of his personal integrity under Articles 11 et seq. of the Civil Code (see paragraphs 4.1 and 4.2 of the Opinion). 153. In response, the Committee observed that Article 14 § 7 (a) of the International Convention on the Elimination of All Forms of Racial Discrimination provides that the Committee is not to consider any communication unless it has ascertained that all available domestic remedies have been exhausted and that it has held in its previous jurisprudence that a petitioner is only required to exhaust remedies that are effective in the circumstances of the particular case (see paragraph 6.2 of the Opinion). 154. Furthermore, the Committee noted that “ the decision of the [ PPS ] was a final decision as far as the criminal procedure was concerned. The State party [had] failed to demonstrate that a petition for review, which would be a remedy against the legality of the decision, could in the present case [have] [led] to a new examination of the complaint ”. Furthermore, the Committee found that “ the facts of the claim were of such a nature that only criminal remedies could constitute an adequate avenue of redress. The objectives pursued through a criminal investigation could not be achieved by means of civil or administrative remedies of the kind proposed by the State party ”. Therefore, the Committee found that “ no other effective remedies were available to the petitioner ” (see paragraph 6.3 of the Opinion). B. The Committee against torture Henri Unai Parot v. Spain, Communication No. 6/1990, U.N. Doc. A/50/44 at 62 (1995) 155. The communication was considered by the Committee at its meeting on 2 May 1995. Among the views it adopted, in the relevant part of their paragraph 6.1, dealing with the requirement of exhaustion of domestic remedies, the Committee: “considered that, even if these attempts to engage available domestic remedies may not have complied with procedural formalities prescribed by law, they left no doubt as to [the alleged victim ’ s] wish to have the allegations investigated. The Committee concluded that, in the circumstances, it was not barred from considering the communication.” THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 156. The Government objected that the applicants had failed to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention in that they should have, but had not, asserted their Convention rights by way of threefold remedies, which are dealt with below in turn. A. CCP and PPS Act 1. The Government 157. In their observations on the admissibility and merits of the application, the Government contended that the applicants, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justina Lacková and Mr Ján Koky Jr. had not sought review of the actions of the DPI by the PPS under Article 167 of the CCP. Should they have been unsuccessful with asserting their rights by means of such a review, it was open to them further to seek review of the lawfulness of the actions of the DPI and even of the PPS by way of a petition and, as the case may be, a renewed petition to higher levels of the PPS under sections 31 et seq. of the PPS Act. 158. As regards applicants Mr Ján Koky and Mr Rastislav Koky, the Government submitted that, although the District Prosecutor had declared their interlocutory appeals against the DPI ’ s decisions to suspend the investigation inadmissible, the District Prosecutor had actually examined the decisions, quashing the former and remedying the situation. 159. As in their original observations, in their further observations on the merits the Government relied on the decision of the Constitutional Court of 23 October 2002. 160. In the latter observations, the Government submitted that none of the applicants had availed themselves of the remedy available to them under Article 167, in conjunction with Article 17 4 § 2 (a) and (c) of the CCP, namely a request to the PPS for review of actions of the DPI. 161. As regards applicants Mr Ján Koky and Mr Rastislav Koky, the Government pointed out that the District Prosecutor had never made any pronouncement to the effect that they were not entitled to the remedies under section 31 et seq. of the PPS Act and that, quite to the contrary, the District Prosecutor had dealt with their interlocutory appeals as provided for under section 31 of the PPS Act. It was nevertheless open to them to pursue their rights further by means of a renewed petition under section 34 of the PPS Act. 162. In support of the above contentions, the Government relied on the case-law of the Constitutional Court, as summarised above, and submitted that none of these remedies had been subject to a time-limit and that, as the investigation had not been terminated but only suspended, the remedies were all still at the applicants ’ disposal 2. The applicants 163. The applicants considered that, in view of the gravity of the case, rather than dwelling on the procedural intricacies of various remedial mechanisms, the respondent State should have addressed the situation proactively and on its own initiative. 164. The applicants further submitted that if there were several avenues of redress at their disposal they should not be required to try more than one of them. 165. The applicants also submitted that, in so far as applicants Mr Ján Koky and Mr Rastislav Koky were concerned, their interlocutory appeals under the CCP had been rejected on account of their lack of standing to appeal, the respective decisions informing them that no further appeal was available as, indeed, was the case under the CCP, to disprove which the Government had submitted nothing in terms of jurisprudence or otherwise. 166. As regards the remaining applicants, it was submitted that they were in an identical position to applicants Mr Ján Koky and Mr Rastislav Koky and that, accordingly, any remedies on their part would be bound to meet with the same result as those of Mr Ján Koky and Mr Rastislav Koky. 167. In the applicants ’ submission, the Government had failed to substantiate that, in the circumstances, any further submission to the PPS had had better prospects of success than those already made. In that context, the applicants pointed out that, at the relevant time, the PPS Act had been a relatively new piece of legislation with no existing case-law, to the effect that the remedies referred to by the Government were to be exhausted prior to the lodging of a complaint with the Constitutional Court. The Constitutional Court ’ s decision of 20 November 2002 (see paragraph 137 above ) and any of its subsequent decisions in similar matters, as relied on by the Government, post-dated the applicants ’ constitutional complaint and were accordingly not of relevance. 3. The Court ’ s assessment 168. The Court observes that, in its admissibility decision in the present case, it decided to join to the merits the question of the exhaustion of domestic remedies under Article 167 of the CCP and section 31 et seq. of the PPS Act. It will accordingly proceed to examination of this question, relying on the general principles and applying them as laid out below under separate headings. (a) General principles 169. The Court reiterates the following general principles, which are of relevance in this case, as formulated and summarised, for example, in its judgment in the case of Akdivar and Others v. Turkey ([GC], 16 September 1996, §§ 65 - 69, Reports of Judgments and Decisions 1996 ‑ IV): - The rule of exhaustion of domestic remedies obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. - Under this rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. - The rule also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. - However, as indicated above, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective. - In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints, and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. - The application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that it must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicants. 170. Moreover, as further formulated and summarised by the Court, for example, in the case of Mađer v. Croatia (no. 56185/07, § 87, 21 June 2011): - Where an applicant has a choice of domestic remedies, it is sufficient for the purposes of the rule of exhaustion of domestic remedies that he or she make use of a remedy which is not unreasonable and which is capable of providing redress for the substance of his or her Convention complaints. - Indeed, where an applicant has a choice of remedies and their comparative effectiveness is not obvious, the Court interprets the requirement of exhaustion of domestic remedies in the applicant ’ s favour. - Once the applicant has used such a remedy, he or she cannot also be required to have tried others that were available but probably no more likely to be successful. (b) Application of the general principles in the present case 171. As to the circumstances of the present case, the Court reiterates first of all that it has been recognised that the Constitutional Court is the supreme authority for the protection of human rights and fundamental freedoms in Slovakia, and that it has jurisdiction to examine individual complaints and to afford complainants redress if appropriate (see, mutatis mutandis, Lawyer Partners, a.s. v. Slovakia, nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, § 45, ECHR 2009-..., with further references). 172. The applicants in the present case resorted to the Constitutional Court by way of an individual complaint under Article 127 of the Constitution. 173. As regards the scope of their constitutional complaint, the Court observes that the applicants mainly contended that the events of 28 February 2002 had not been thoroughly and efficiently investigated so as to ensure that those responsible were identified and punished (see paragraph 109 above), making reference to Article 1 § 2 of the Constitution, the principle of “general acceptance and observance of human rights and basic freedoms for everybody”, Articles 5 § 1 and 13 of the Convention and the Court ’ s judgment in the case of Aksoy v. Turkey (cited above) (see paragraph 110 above), and in the summary of their claim seeking a finding of a violation of Article 13 of the Convention and Article 46 § 1 of the Constitution (see paragraph 111 above). 174. The Court is of the view that the scope of the applicants ’ constitutional complaint has to be viewed in the context of the proceedings, in which Articles 5, 6, 8, 13 and 14 of the Convention, 1 of Protocol No. 1 and 15 and 21 of the Constitution were cited (see paragraph 97 above). 175. Bearing in mind that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see, for example, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I), the Court is of the view that, on the particular facts of the present case, the scope of the applicants ’ constitutional complaint was such as to allow the Constitutional Court to examine the matters now arising before the Court. 176. At the same time, the Court points out that the circumstances of the present case differ from those where a particularly strict interpretation and application by the Constitutional Court of the formal rules on the scope of the constitutional complaint were held acceptable in Convention terms in the context of the length of proceedings ( see, for example, Obluk v. Slovakia, no. 69484/01, §§ 48, 51 and 61, 20 June 2006; Šidlová v. Slovakia, no. 50224/99, § 53, 26 September 2006; Mazurek v. Slovakia (dec.), no. 16970/05, 3 March 2009; and STARVYS, s.r.o. v. Slovakia (dec.), no. 38966/03, 30 November 2010 ). 177. The Court however observes that the applicants ’ constitutional complaint was declared inadmissible on 23 October 2002 under section 53(1) of the Constitutional Court Act, on the ground that the applicants had failed to exhaust ordinary remedies (see paragraph 112 above ) under Articles 167 and 174 § 2 (a) and (c) of the CCP and sections 31 et seq. of PPS Act (see paragraphs 113 above). 178. To that end, the Court acknowledges that it is first of all for the national authorities to devise means and methods of examining individual complaints so as to render the protection of the individual rights effective (see Gál v. Slovakia, no. 45426/06, § 65, 30 November 2010, and Michalák v. Slovakia, no. 30157/03, § 176, 8 February 2011 ). More specifically, the Court acknowledges that, in line with the subsidiary role of its jurisdiction, it is first of all for the Constitutional Court to interpret and apply the rules on admissibility of individual complaints before it. 179. Nevertheless, it remains the Court ’ s task to satisfy itself in each individual case whether the protection of the applicant ’ s rights granted by the national authorities is comparable with that which the Court can provide under the Convention (see, mutatis mutandis, Bako, cited above; Gál, cited above, § 66; and Michalák, cited above, § 177). More specifically, the Court considers that, in the circumstances of the present case, it remains to be ascertained whether there is anything more for the applicants to do in order to satisfy the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. 180. In that respect, the Court considers that it is reasonable to assume that the applicants were victims of criminal offences. In that capacity, they became involved in criminal proceedings against one or more persons unknown which, at the given stage, were aimed at investigating the relevant facts and establishing the identity of the perpetrators. 181. The Court also observes that the procedural framework for those proceedings and the applicants ’ role and legal position as victims in them were defined by the provisions of the CCP. It was among other things the purpose of those proceedings to establish the facts and to identify and punish the perpetrators (see paragraph 21 above). Being considered victims of the alleged offences, the applicants had an array of procedural rights (see paragraph 123 above) which included, inter alia, that their submissions be assessed as to content irrespective of their name or form (see paragraph 124 above) and that the applicants be informed on available remedies (see paragraph 125 above). 182. The Court notes that the orders to suspend the proceedings were taken in the procedural form of a decision ( uznesenie ), that they were then challenged by applicants Mr Ján Koky and Mr Rastislav Koky by way of an interlocutory appeal to the PPS, and that these appeals were rejected for the appellants ’ lack of standing to appeal. 183. At the same time, the Court notes that the decisions rejecting these appeals expressly stated that, as indeed appears to be the case under the relevant provisions of the CCP, no further interlocutory appeal was permissible and that they contained no instructions about any other remedy. None the less, the PPS on its own initiative reviewed the contested situation in the light of the appellants ’ arguments, in which ultimately it found no merit. 184. The Court also observes that nothing has been proposed by the Government or established by the Court otherwise to suggest that the position of the remaining applicants in respect of the remedies used by applicants Mr Ján Koky and Mr Rastislav Koky was such as to support a conclusion that the use of these remedies by them had better chances of success than those of applicants Mr Ján Koky and Mr Rastislav Koky. The Court accordingly finds no reason for considering the remaining applicants in relation to the exhaustion requirement under Article 35 § 1 of the Convention differently from applicants Mr Ján Koky and Mr Rastislav Koky. 185. As to the specific remedies referred to by the Government, that is to say those under Article 167 of the CCP and sections 31 et seq. of the PPS Act, the Court observes that there appears to be a degree of uncertainty as to the functioning of the system in respect of the various remedies available in the applicants ’ situation and their mutual causal and functional relationship. 186. The Court notes that this uncertainty has been enhanced by what may appear to be a certain incongruity in the relevant part of the Government ’ s argumentation in their observations on the admissibility and merits of the case and in their further observations on its merits. In particular, in the former observations, the Government appear not to have intended to reproach Mr Ján Koky and Mr Rastislav Koky for not having resorted to the remedy under Article 167 of the CCP, whereas in their latter observations they may be understood as arguing that none of the applicants, that is to say including Mr Ján Koky and Mr Rastislav Koky, have. 187. The lack of clarity as to the procedural regime in which the PPS examined the arguments of applicants Mr Ján Koky and Mr Rastislav Koky, presented in their inadmissible interlocutory appeals, and any relationship of causality between their arguments and the continuation of the investigation under the order of the District Prosecutor of 3 May 2002, is further enhanced by the fact that the District Prosecutor ’ s decision on a written reply to the interlocutory appeal, which had been lodged on the same day as the order, was not made until 22 May 2002, which was after the order in question, and that neither the order nor the decision to resume the investigation appear to make any reference to the interlocutory appeal. 188. However, judging the submissions of applicants Mr Ján Koky and Mr Rastislav Koky of 3 May and 3 July 2002 by their content, which the District Prosecutor appears also to have been duty bound to do, and having regard to the District Prosecutor ’ s response to these submissions as well as the Government ’ s original observations on the admissibility and merits of this case, the Court finds that the applicants cannot be considered as having failed to make use of the remedy available to them under Article 167 of the CCP. 189. Turning to the remedies under sections 31 et seq. of the PPS Act, the Court considers it of relevance at the outset to evaluate the purpose of this piece of legislation, which is to determine the status and jurisdiction of the PPS, the status and jurisdiction of the Prosecutor General, the status of other prosecutors and organisation and administration of the PPS (see paragraph 132 above). In other words, it appears to be primarily a tool of internal organisation of the PPS, rather of granting and regulating individual rights of substance or procedure, which in turn appears to be a matter to be addressed by the relevant procedural codes. 190. As to the case-law of the Constitutional Court concerning the interpretation and application of the exhaustion of ordinary remedies in respect of the remedies under sections 31 et seq. of the PPS Act, the Court observes that, except for the Constitutional Court ’ s decision of 13 December 2001, all the other decisions relied on by the Government post-date the applicants ’ constitutional complaint. 191. As regards the decision of 13 December 2001, which does make reference to the remedies under sections 31 et seq. of the PPS Act, the Court considers it noteworthy that this decision was taken in respect of a legally undefined “motion” in a legal regime which preceded the current one, in which a complaint under Article 127 of the Constitution is considered to be an effective remedy for the purposes of Article 35 § 1 of the Convention, and which has existed under a constitutional amendment of 2001 with effect from 1 January 2002 (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002 ‑ IX). In addition, in the situation complained of by that “motion”, before bringing an action with the Constitutional Court the complainant had exhausted no remedies at all. The Court considers that these differences distinguish the present case from that examined by the Constitutional Court on 13 December 2001. 192. The Court therefore concludes that there was not sufficient support in the domestic law and practice at the relevant time for the conclusion that, for the purposes of Article 35 § 1 of the Convention, the applicants were required to resort to the remedies under sections 31 et seq. of the PPS Act. 193. Moreover, and in any event, noting that the applicants in fact did address the Prosecutor General with a submission clearly aimed at ensuring that their case was handled with the necessary care and attention, that it is not disputed that the PPS has received this submission (see paragraph 99 above), and that nevertheless no attention at all appears to have been given to it, the Court finally concludes that there is no scope for rejecting the application under Article 35 § 1 of the Convention in connection with the remedies under sections 31 et seq. of the PPS Act. 194. As regards the remedies under sections 31 et seq. of the PPS Act, and whether the present case bears any apparent resemblance to that of Zubaľ v. Slovakia (no. 44065/06, § 13 and 33, 9 November 2010), the Court points out that they differ in a number of aspects, including that the proceedings in the present case were aimed at investigating allegedly unlawful actions by private individuals and not by agents of the State; that the unlawful actions investigated in the present case were of a significantly greater gravity compared to the case of Zubaľ, the substantive complaint in which concerned solely Article 8 of the Convention. Further, as observed in the previous paragraph, the applicants in the present case in fact arguably did raise their arguments with the PPS prior to the introduction of their constitutional complaint. 195. In reaching the conclusions in paragraphs 192 and 193 above, the Court has also taken into consideration the applicants ’ personal circumstances, the fact that rights as fundamental as those under Article 3 of the Convention (see below) are at stake, and that the Convention is intended to guarantee rights that are not theoretical or illusory but rights that are practical and effective. 196. Lastly, the Court observes that its conclusions in this respect are in consonance mutatis mutandis with relevant international jurisprudence as cited above. 197. The first limb of the Government ’ s preliminary objection therefore cannot be sustained. B. Protection of personal integrity 198. In their observations on the admissibility and merits of the application, as regards the complaint under Article 14 of the Convention, the Government contended, in reliance on Article 35 § 1 of the Convention, that the applicants should have asserted their rights by means of an action for protection of personal integrity under Articles 11 et seq. of the Civil Code, but had not done so. 199. The Court will deal with this matter below together with the merits of the Article 14 complaint. C. Other objections 200. In their observations on the merits of the case, the Government added further objections of non ‑ exhaustion of domestic remedies. In particular, they submitted that the scope of the applicants ’ complaints to the Court was not identical to those asserted before the Constitutional Court; that the action for protection of personal integrity was a remedy to be exhausted in respect of all of the applicants ’ complaints, and that an action against the State for damages under section 78 of the Police Act (Law no. 171/1993 Coll., as amended) was an effective further remedy at the applicants ’ disposal. In that respect, the Government relied on the Court ’ s decision in (see Baláž and Others v. Slovakia (dec.), no. 9210/02, 28 November 2006 ). 201. The Court reiterates that, pursuant to Rule 55 of the Rules of Court, “any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted as provided in Rule 51 and 54, as the case may be”. 202. It has neither been argued by the Government, nor otherwise established by the Court that it was not possible for the Government to raise these new objections at the admissibility stage. They are accordingly estopped from raising them now ( for recapitulation of the applicable principles see, for example, Mooren v. Germany [GC], no. 113 64/03, §§ 57 ‑ 59, ECHR 2009-...). II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 203. Alleging that there had been systematic discrimination and racist attacks against Roma in Slovakia, combined with a general failure of the State authorities properly to investigate and prosecute such crimes, the applicants complained that they had been subjected to violence amounting to torture and inhuman and degrading treatment and that the Slovakian authorities had failed to carry out a prompt, impartial and effective official investigation into the case. On that account, the applicants alleged a violation of Article 3 of the Convention, which provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Arguments of the parties 204. The applicants objected that the DPI had only questioned three of some thirty suspected perpetrators and that they had only questioned them once, at the beginning of the investigation. The applicants also contended that none of the suspects had been re- interviewed after the identity exercise and despite the information it had established. Furthermore, the applicants suggested that the DPI had failed to take any new oral depositions after the second investigation had been opened pursuant to the District Prosecutor ’ s instructions. 205. The Government responded by pointing out that except for Mr Ján Koky, Mr Martin Kočko and Mr Rastislav Koky the applicants had not been exposed to direct physical attack and that it had only been applicants Mr Martin Kočko and Mr Rastislav Koky who had sustained any bodily injuries, the actual extent of which was, however, debatable. They submitted that any mental distress caused to the remaining applicants and, in particular Ms Renáta Čonková (see paragraph 34 above) and Ms Justína Lacková (see paragraph 59 above) had not reached the Article 3 threshold. 206. Moreover, and in any event, referring to the facts of the case, the Government opposed the applicants ’ factual assertions, emphasised that the investigation had been supervised by the PPS and also by the Ministry of the Interior, and considered that it had been carried out in full compliance with Convention principles. 207. As to the applicants ’ specific objections, the Government submitted that P. S. and M. S. had been repeatedly questioned as suspects and that a number of investigative actions had been taken between 3 May and 26 June 2002. Furthermore, the investigation had not been terminated, but merely stayed, and further investigative actions had been and still could be taken with a view to further establishing the relevant facts, even after the second suspension. 208. In so far as any racial motive might have been at the heart of the incident, the Government considered that the investigation had been adequately refocused as soon as allegations to that effect surfaced in the interviews of 20 March 2002. In that context, however, the Government pointed out that in the applicants ’ submissions immediately after the incident there had been no sign of any racial slurs on the part of the attackers, in view of which the Government considered remarkable the applicants ’ later detailed accounts of rather expressive alleged racial affronts. 209. In reply, the applicants emphasised the physical injuries sustained by Mr Martin Kočko and Mr Rastislav Koky and the humiliation, fear, stress and trauma sustained by all of them. These repercussions had been aggravated by the presence of women and children at the scene of the incident and by its blatantly racial and derogatory nature. Accordingly, in the applicants ’ submission, the seriousness of the treatment to which they had been exposed had reached the threshold of Article 3 of the Convention. 210. As to the investigation itself, the applicants asserted that, although they had been in a particularity vulnerable position and it had accordingly been the responsibility of the State authorities to proceed proactively and on their own initiative, the authorities had made it necessary for the applicants to press for the investigation to proceed and that all the authorities had done was make an inquiry of a purely formal nature. B. The Court ’ s assessment 1. General principles 211. The Court reiterates that Article 3 of the Convention must be regarded as one of the most fundamental provisions of the Convention and as enshrining the core values of the democratic societies making up the Council of Europe (see Pretty v. the United Kingdom, no. 2346/02, § 49, ECHR 2002-III). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention (see, inter alia, Chahal v. the United Kingdom, judgment of 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V). 212. The Court also reiterates that the ill-treatment suffered must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 VII). 213. It is further to be reiterated that, in general, actions incompatible with Article 3 of the Convention primarily incur the liability of a Contracting State if they were inflicted by persons holding an official position. However, the absence of any direct State responsibility for acts of violence that meet the condition of severity such as to engage Article 3 of the Convention does not absolve the State from all obligations under this provision. The obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, also requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment administered by other private persons (see, for example, Milanović v. Serbia, no. 44614/07, § 83, 14 December 2010, and Denis Vasilyev v. Russia, no. 32704/04, § 98, 17 December 2009, with further references ). 214. The Court further reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with Article 1 of the Convention, requires by implication that there should also be an effective official investigation capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII ). A positive obligation of this sort cannot, in principle, be considered to be limited solely to cases of ill-treatment by State agents (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003 ‑ XII, and Šečić v. Croatia, no. 40116/02, § 53, 31 May 2007 ). 215. Even though the scope of the State ’ s procedural obligations might differ between cases where treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals, the requirements as to an official investigation are similar. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The investigation must be independent, impartial and subject to public scrutiny and that the competent authorities must act with diligence. Among other things, they must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical reports. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, for example, Beganović v. Croatia, no. 46423/06, § 75, 25 June 2009, and Denis Vasilyev, cited above, § 100 with further references). 2. Application of the general principles to the present case (a) Was there ill-treatment within the meaning of Article 3 of the Convention? 216. The Court observes that, in the present case, it has not been disputed between the parties that a group of persons, some of whom were wearing balaclavas and armed with baseball bats and iron bars, entered the settlement where the applicants lived and engaged there in a disturbance involving direct physical assault on applicants Mr Ján Koky, Mr Martin Kočko and Mr Rastislav Koky, and causing bodily harm to the latter two. And neither has it been disputed that the attackers caused damage to the exterior of houses nos. 61, 67 and 69, forcibly entered houses nos. 61 and 67, and inflicted further damage to the furniture and equipment inside the latter. 217. Where however there appears to be a degree of disagreement between the parties is the number of attackers, the extent and nature of the injuries to applicants Mr Martin Kočko and Mr Rastislav Koky, the extent of the damage inflicted upon the applicants ’ property, and the racial slurs uttered by the attackers. 218. The number of the attackers varies between twelve, as in the official documentation (see paragraph 11 above), and fifty, as submitted by one of the witnesses (see paragraph 43 above). 219. As regards the injuries suffered by applicant Mr Rastislav Koky, the applicants ’ submission points to a skull fracture, a cut to the left side of the back of the head, a crushed left arm, pressure injury to the left side of the back and bruises on the left knee, which necessitated hospitalisation of ten to fourteen days while the Government assert that he was hospitalised for no more than three to four days. 220. In the case of applicant Mr Martin Kočko, the applicants ’ submission has been that he suffered a scraped elbow with a pressure injury on the right side, needing recovery time of seven to ten days, the Government submitting that his injuries did not merit a stay in hospital. 221. In any event, there has not been any dispute that the injuries sustained by applicants Mr Rastislav Koky and Mr Martin Kočko required treatment in hospital, where they had to be taken by ambulance. 222. The Court considers however that, in the assessment of the gravity of these injuries and any damage to property from the perspective of the threshold of Article 3 of the Convention, apart from the damage itself, regard has to be had to the overall context of the attack. 223. From that perspective, the Court observes that the incident took place at night time and in a Roma settlement, and that it involved a group of partly armed and masked men who forcibly invaded the applicants ’ home and privacy; moreover, damage was caused to the applicants ’ property and there was a physical confrontation inside the applicants ’ home as well as outside. 224. Furthermore, it has been submitted by the applicants and not rebutted by the authorities that the incident was marked by verbal threats and imprecations affronting the applicants ’ ethnic dignity. 225. In view of the above-mentioned considerations, the Court concludes that there can be no doubt that the treatment the applicants were exposed to at the hands of private individuals fell within the purview of Article 3 of the Convention (see, for example, Beganović, cited above, § 68). (b) Was the investigation compatible with Article 3 of the Convention? 226. The Court observes that the investigation under review was twice suspended, the former suspension being lifted and the latter being upheld. Investigative actions were thus taken in periods before its first suspension, between the two suspensions and after the second suspension. For the sake of clarity, the Court will review these periods and the investigative actions taken in them below, in turn. 227. In the first segment, the police inspected the crime scene and, in particular, the three houses which had been damaged, the inspection having produced, inter alia, two biological traces. Applicant Mr Ján Koky was interviewed three times, applicant Mr Ján Koky Jr. once and the remaining applicants twice. 228. The DPI also interviewed the waitress I. S. , her two sons P. S. and M. S. and the former ’ s girlfriend, E. N. 229. Furthermore, three witnesses (Z.K., H.B. and J.K.) were interviewed twice and three others (T.K., M.K. and P.J.) once. 230. In addition, an identity exercise took place and the Government submitted that transcripts of the incoming and outcoming mobile phone communications of I.S., M.S., P.S. and E.N. had been requested. 231. Lastly, at this stage of the investigation, the DPI procured and obtained analysis of biological material from three people (B.B., V.P. and E.K.) with reference to biological traces from the crime scene. 232. In the period between the two suspensions, the DPI re-interviewed P.S. and M.S. and interviewed the third son of I.S., F.S., and M.N., as well as nine other individuals (M.L., E.K., R.S., I.K., J.H., M.K., J.K., P.P. and B.P.), all of whom consented to provide biological material for the purposes of forensic analysis, the case file containing the results of the analysis in respect of M.S., P.S., F.S., M.N. and M.L. only. 233. Finally, in the period after the second suspension, the DPI interviewed seven other individuals and had biological material analysed and compared with that from the crime scene in respect of three individuals (P.G., M.S. and M.A.). 234. In view of the above, the Court observes that, in quantitative terms, the incident at the applicants ’ settlement was subject to structured and substantive investigation. However, it remains to be seen whether this investigation was indeed conducted in a determined manner and whether all was done that could reasonably have been expected to be done with a view to establishing the identity of the perpetrators and their motives and, as the case may be, to provide an adequate basis for their prosecution and punishment. 235. In that regard, the Court observes that a crucial piece of evidentiary material secured at the crime scene appears to be the biological traces, which were later analysed and compared with biological material from the suspects. In particular, the Court observes that in the period between the two suspensions of the investigation biological material appears to have been taken for the purposes of such an analysis from the three sons of I.S. and ten other individuals. However, the results of these analyses, as submitted to the Court, pertain to the sons of I.S. and two others only, the results in respect of eight others being missing. 236. Furthermore, the Court observes that in suspending the investigation for the second time the authorities appear to have placed emphasis on the incongruity between the initial deposition of applicant Mr Ján Koky that he did not know the identity of one of the five assailants who was not wearing a balaclava, and his later submission during the identity parade of 10 April 2002 to the effect that he had recognised and known that assailant. However, there does not appear to have been any action taken with a view to clarifying this controversy, such as, for example, a face ‑ to ‑ face interview ( konfrontácia ). 237. Moreover, it has not escaped the Court ’ s attention that, although the Government submitted that records of the mobile communications of some of the involved had been requested with a view to further enlightenment of the facts, nothing has been submitted in terms of substantiation of this claim and there does not appear to have been any action taken by way of follow ‑ up. 238. In addition, in so far as the Government may be understood as arguing that the investigation had not been terminated, but had merely been suspended, and that, accordingly, there has not been any formal obstacle to its continuation and completion, it has to be pointed out that there is no appearance that since 13 January 2003 (see paragraph 107 above) any action has been taken to support such a submission. 239. The Court considers that these elements, coupled with the sensitive nature of the situation related to Roma in Slovakia at the relevant time (see, for example, Mižigárová v. Slovakia, no. 74832/01, §§ 57-63, 14 December 2010 and V.C. v. Slovakia, no. 18968/07, §§ 78-84 and 146-9, 8 November 2011 ), are sufficient for it to conclude that the authorities have not done all that could have been reasonably expected of them to investigate the incident, to establish the identity of those responsible and, as the case may be, to draw consequences. In reaching this conclusion, the Court has taken into account the particular importance for an investigation into an attack with racial overtones to be pursued with vigour and impartiality, having regard to the need to reassert continuously society ’ s condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence (see, mutatis mutandis, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V). 240. In conclusion, the Court finds that the investigation into the incident at the applicants ’ settlement cannot be considered as having been effective. Accordingly, there has been a violation of the procedural limb of Article 3 of the Convention. III. OTHER ALLEGED VIOLATIONS 241. The applicants also alleged that the perpetrators ’ intrusion into their homes and destruction of their property, coupled with the authorities ’ failure to prevent and suppress racist violence and to carry out an effective investigation, amounted to a violation of their rights under Article 8 of the Convention and 1 of Protocol No. 1. 242. On the basis of the same arguments, and in connection with their Roma ethnicity, the applicants further alleged a violation of Article 13, in conjunction with Articles 3 and 8 of the Convention, and of Article 14, in conjunction with Articles 3, 8 and 13 of the Convention. 243. The Court observes first of all that, as for the substance, to a significant extent the essence of these complaints overlaps with that of the complaints presented and examined above under Article 3 of the Convention. The Court finds that there is no justification for a separate examination of the same matters under any of the other Convention provisions cited. 244. Furthermore, in view of its findings in respect of the complaint under Article 3 of the Convention, the Court considers that it is unnecessary to examine the remaining complaints. This conclusion applies accordingly to the Government ’ s preliminary objection concerning the action for protection of personal integrity as a remedy to be used under Article 35 § 1 of the Convention in respect of the applicants ’ complaint under Article 14 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 245. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 246. The applicants claimed 85, 300 euros (EUR) by way of compensation in respect of pecuniary damage. This amount consisted of: - EUR 7, 000 in respect of damage caused to the house of applicant Mr Ján Koky; - EUR 833 in respect of earning opportunities lost by applicant Mr Ján Koky due to the time he had to dedicate to repairing his house; - EUR 667 in respect of damage caused to the house of applicant Ms Renáta Čonková; and - EUR 76, 700 in respect of present and future earnings lost by applicant Mr Martin Kočko on account of his injuries. 247. The Government considered the claims overstated and unsubstantiated and pointed out that the investigation had not been terminated but merely suspended, which is why the applicants ’ claim could still be pursued at the domestic level. 248. The Court observes first of all that the claim in respect of pecuniary damage has not been supported by any evidence. In addition, the Court finds no causal link between the damage alleged, which was essentially caused by non-State actors, and the violation found of the respondent State ’ s obligations under the Convention. The claim therefore has to be dismissed. 2. Non- pecuniary damage 249. Applicants Mr Martin Kočko and Mr Rastislav Koky claimed EUR 10, 000 each in respect of non-pecuniary damage, consisting of pain, frustration, helplessness and humiliation they had suffered as a result of the beatings they had been subjected to and the deficiencies of the investigation they complained of. 250. Applicants Ms Žaneta Kokyová, Mr Milan Baláž, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justínka Lacková and Mr Ján Koky Jr. claimed EUR 5, 000 each in respect of non-pecuniary damage consisting of pain, frustration, helplessness, stress and humiliation and lasting harm and emotional and mental trauma due to the attack. 251. Applicant Ms Renáta Kokyová claimed EUR 10, 000 in compensation for non-pecuniary damage on account of the circumstances involving her minor children being present at and witnessing the attack. 252. The Government opposed these claims as overstated and submitted that, should the Court find a violation of the applicants ’ Convention rights, a more appropriate amount of damages should be paid. 253. The Court observes that the violation found above is of a procedural nature and that it does not concern the underlying treatment suffered by the applicants at the hands of non-State actors. It considers that, as a result of the violation found, the applicants must have sustained damage of a non-pecuniary nature. Having regard to the amount of their claims and ruling on an equitable basis, it awards EUR 10 ,000 to each of the applicants Mr Martin Kočko and Mr Rastislav Koky and EUR 5 ,000 to each of the applicants Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justína Lacková, and Mr Ján Koky Jr., plus any tax that may be chargeable under that head. 254. Noting that applicant Mr Ján Koky does not appear to have made any claim in respect of non-pecuniary damage, no ruling is made in that respect. B. Costs and expenses 255. Lastly, the applicants claimed EUR 7,1 16 in respect of legal costs and EUR 62 in respect of administrative expenses incurred at the national level and before the Court. 256. Relying on the Court ’ s judgment in the case of Young, James and Webster v. the United Kingdom ((former Article 50), 18 October 1982, § 15, Series A no. 55), the Government submitted that effective protection of human rights required human rights lawyers to be moderate in the fees that they charged to applicants; that only reasonably incurred legal costs should be compensated, and that the remainder of the claim should be dismissed. 257. In accordance with the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. 258. In the instant case, the Court observes that the applicants have not substantiated their claim with any relevant supporting documents establishing that they were under an obligation to pay for the costs of legal services and administrative expenses or that they have actually paid for them. Accordingly, the Court does not award any sum under this head (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 133-134, ECHR 2004-XI). C. Default interest 259. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that the investigation into the incident at the applicants’ settlement could not be considered as having been effective, in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It found in particular that the authorities had not done everything that could have been expected to investigate the incident, in particular taking into account its racial overtones. |
762 | Right to life and right to respect for private life | II. RELEVANT DOMESTIC, COMPARATIVE AND INTERNATIONAL LAW 19. The relevant provisions of the Swiss Criminal Code are worded as follows : Article 114 – Homicide at the victim ’ s request “ Any person who for commendable motives, and in particular out of compassion, causes the death of a person at that person ’ s own genuine and insistent request shall be liable to a custodial sentence not exceeding three years or to a monetary penalty. ” Article 115 – Inciting and assisting suicide “ Any person who for selfish motives incites or assists another to commit or attempt to commit suicide shall, if that other person thereafter commits or attempts to commit suicide, be liable to a custodial sentence not exceeding five years or to a monetary penalty. ” 20. The Federal Drugs Act ( Lstup ) ( “the Drugs Act” ) of 3 October 1951 regulates the use and supervision of drugs. The Federal Medicines and Medical Devices Act ( LPTh ) ( “the Therapeutic Products Act” ) of 15 December 2000 applies to drugs covered by the Drugs Act where they are used as therapeutic products ( section 2 (1)(b) of the Therapeutic Products Act ). The Drugs Act remains applicable, however, if the Therapeutic Products Act does not regulate a specific matter or if its regulation is less extensive (section 2 (1 bis ) of the Drugs Act ). 21. Under section 1 of the Drugs Act and the Order on Drugs and Psychotropic Substances of 12 December 1996 issued by the Swiss Institute for Therapeutic Products, sodium pentobarbital is considered to be a drug within the meaning of the Drugs Act. Moreover, it appears from the Federal Court ’ s judgment of 3 November 2006 that sodium pentobarbital is categorised as a “ category B ” medicinal product within the meaning of the Therapeutic Products Act. 22. In addition, sodium pentobarbital is listed in Schedule III of the United Nations Convention on Psychotropic Substances of 21 February 1971. Under that Convention, it may be issued for individual use only on the basis of a medical prescription. 23. Section 9 of the Drugs Act lists the members of the medical profession who may obtain drugs without authorisation. Section 9 ( 1 ) is worded as follows: “Doctors, dentists, veterinary surgeons and those managing a public or hospital pharmacy who practise as self-employed professionals by virtue of a decision of the cantonal authorities adopted pursuant to the Federal Law of 19 December 1877 on the practice of the professions of doctor, pharmacist and veterinary surgeon in the Swiss Confederation, may obtain, hold, use and issue drugs without authorisation, within the limits justified by the practice, in conformity with the requirements, of their profession. This shall be without prejudice to the cantonal provisions regulating direct dispensing by doctors and veterinary surgeons ... ” 24. Pursuant to section 10 ( 1 ) of the same Act, only doctors and veterinary surgeons are authorised to prescribe drugs : “The doctors and veterinary surgeons who fall under the scope of section 9 shall be authorised to prescribe drugs. ... ” 25. Doctors and veterinary surgeons may write such prescriptions only in so far as this is medically acceptable and only for patients whom they have examined personally ( section 11 ( 1 ) of the same Act, and Article 43 § 1 of the Order on Drugs of 29 May 1996). 26. Sections 24 and 26 of the Therapeutic Products Act are worded as follows : Section 24 – Issuing of medicinal products subject to a prescription “The following persons shall be authorised to issue medicinal products that are subject to a prescription : ( a ) pharmacists, on a medical prescription, and, where justified in exceptional cases, without a medical prescription; ( b ) any other person exercising a medical profession, in accordance with the provisions on dispensing physicians; ( c ) any duly trained professional, under the supervision of a person who comes under the scope of paragraphs ( a ) and ( b ). ...” Section 26 – Principle of prescription and issue “The recognised rules of pharmaceutical and medical science shall be respected in the prescription and issuing of medicines. A medicinal product may be prescribed only where the state of health of the consumer or patient is known.” 27. Chapter 8 of the same Act contains criminal-law provisions targeting persons who intentionally endanger the health of another person in relation to an activity covered by the Act. Section 86 of the Act provides: Section 86 – Offences “Anyone who intentionally endangers human life shall be liable to imprisonment or a fine of up to 200, 000 francs, unless he or she has committed a more serious offence within the meaning of the Criminal Code or of the Drugs Act of 3 October 1951, if he or she : ( a ) neglects the duty of care when carrying out an operation related to therapeutic products; ( b ) manufactures, places on the market, prescribes, imports or exports medicinal products or trades in them abroad without authorisation or in infringement of other provisions of this Act; ( c ) issues therapeutic products without authorisation to do so; ... ( f ) neglects his or her obligation to ensure the upkeep of medical devices; ... Where the perpetrator is acting in a professional capacity, the term of imprisonment shall be for up to five years and the fine shall be up to 500 ,000 francs. Where the perpetrator acts through negligence, the term of imprisonment shall be up to six months or the fine up to 100,000 francs.” 28. In its judgments 6B_48/2009 and 6B_14/2009 of 11 June 2009, the Federal Court upheld the conviction and sentencing to four and a half years ’ imprisonment of a psychiatrist on the ground that the latter, who had assisted his patient to commit suicide, had incorrectly assessed the patient ’ s capacity for discernment. 29. The research conducted by the Court indicates that certain member States of the Council of Europe have specific regulations covering access to substances liable to facilitate suicide. 30. In Belgium, for example, the Law of 28 May 2002 defines euthanasia as an act carried out by a third party which intentionally ends an individual ’ s life at the latter ’ s request ( section 2 of the Law ). A pharmacist who issues a “lethal substance ” does not commit an offence where this is done on the basis of a prescription in which the doctor explicitly states that he or she is acting in accordance with the law. The implementing regulations establish the criteria of prudence and the conditions which must be met for the prescription and issue of such medicines; the necessary measures must also be taken to ensure the availability of the lethal substances. 31. In Luxembourg, the Law of 16 March 2009 decriminalised euthanasia and assisted suicide. Under that Law, access to a medicine enabling suicide is legally possible for a doctor only if he or she plays an integral part in the process of euthanasia or assisted suicide. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 32. The applicant complained about the conditions required to obtain sodium pentobarbital, namely a medical prescription based on a thorough psychiatric assessment. He alleged that, since those conditions could not be met in his case, the right to which he considered himself entitled, namely that of choosing the time and manner of his death, was not respected. He submitted that, in an exceptional situation such as his, access to the necessary medical products for suicide ought to be guaranteed by the State. He relied on Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties ’ submissions 1. The applicant 33. The applicant alleged that he was the victim of interference with the exercise of his right to respect for his private life within the meaning of Article 8 of the Convention. He did not share the Government ’ s view that other options for ending his life were available to him. He considered that the ingestion of sodium pentobarbital was the only dignified, certain, rapid and pain-free method of committing suicide. Moreover, the fact that none of the 170 psychiatrists practising in the Basle region contacted by him had been willing to help him was, in his opinion, proof that it was impossible to satisfy the conditions laid down by the Federal Court. He submitted that this was unquestionably contrary to the principle, established by the Court, that the Convention protected rights that were practical and effective ( he referred to Artico v. Italy, 13 May 1980, § 33, Series A no. 37). 34. The applicant further alleged that the cases of suicide referred to in which Dignitas had provided assistance dated back to 2001 to 2004 and that, in consequence, they were not to be taken into account in his case. In addition, an investigation had been opened in respect of doctors in Zürich who had prescribed sodium pentobarbital to persons suffering from psychiatric problems wishing to commit suicide, on the ground that there had been no in-depth psychiatric assessment. He also submitted that he had been informed by Dignitas that the association was no longer in contact with psychiatrists who were willing to carry out the necessary expert assessment. Lastly, he argued that, by virtue of the right to self-determination, he was not required to undertake further therapy, contrary to the Government ’ s affirmations, in so far as he had clearly and freely taken his decision to end his life. 35. As to the Government ’ s argument concerning the inherent risks of excessive liberalisation in the area of suicide, he considered this unconvincing, alleging that the Swiss authorities were in any event all but inactive in the area of suicide prevention, despite the fact that there were almost 67, 000 attempted suicides per year ( in this connection, the applicant referred to the Federal Council ’ s reply of 9 January 2002 to questions posed by Andreas Gross, national councillor and member of the Parliamentary Assembly of the Council of Europe). 36. The applicant further submitted that the Government had ignored the fact that he had been suffering from serious psychiatric problems for many years. His intention to end his life was unambiguous, as was clearly shown by his previous suicide attempts and his efforts to obtain legal approval for his decision. It was not therefore necessary for him to prove that he was serious in his intent, through either an in-depth psychiatric assessment or psychiatric assistance over a prolonged period. 37. In view of the above, the applicant alleged that the impugned interference with his right to respect for his private life as guaranteed by Article 8 § 1 of the Convention was not justified, either by the protection of his own life or on the grounds of public health or safety. Finally, he complained that the impossibility of finding a psychiatrist willing to provide an expert report had rendered illusory his right to respect for his private life. 2. The Government 38. The Government denied any infringement in the instant case of the applicant ’ s right to respect for his private life as guaranteed by Article 8 § 1 of the Convention. In this regard, they considered that this case differed from the Pretty v. the United Kingdom case (no. 2346/02, ECHR 2002 ‑ III), in which the applicant, incapable of acting autonomously, was prevented from putting into practice her choice to die in a manner that she considered dignified. According to the Government, the illness suffered by the applicant in the instant case did not prevent him from acting autonomously. There were numerous other solutions available to able-bodied persons wishing to commit suicide. Furthermore, like the Federal Court, the Government considered that the right to self-determination which was enshrined in Article 8 § 1 could not include the right of an individual to assisted suicide, whether by making available the necessary means or through active assistance where the person was not able to act autonomously. 39. The Government added that, in any event, should the Court nonetheless consider that the Federal Court ’ s decision infringed the rights guaranteed by Article 8 § 1 of the Convention, such an infringement would be justified in the light of the criteria set out in paragraph 2 of that Article. 40. Moreover, in the Government ’ s opinion, the impugned regulations had a sufficient basis in law, a fact that the applicant had not contested ( see paragraphs 19 - 28 above ). 41. The Government further alleged that the restriction on access to sodium pentobarbital served to protect public health and safety and to prevent crime. 42. As to the necessity of such a restriction in a democratic society, the Government indicated that the Swiss regulations and practice in the area of assisted suicide were more permissive than in the majority of the other Council of Europe member States. Assisted suicide was not liable to punishment in general, but only in certain circumstances ( they referred to Article 115 of the Criminal Code; see paragraph 19 above ). 43. The Government specified that assisted suicide for individuals suffering from a psychiatric illness was not only legally possible in Switzerland but also occurred in practice. To their knowledge, the criminal convictions of doctors for prescribing sodium pentobarbital all concerned cases where the diagnosis had not been carefully established or was manifestly erroneous. Moreover, according to a study conducted between 2001 and 2004 on suicides assisted by the associations Exit and Dignitas, carried out by the Institute of Forensic Medicine at the University of Zürich, twelve persons suffering from a psychiatric illness had been assisted by those two associations during that period. None of the doctors involved in those cases was prosecuted, and nor were any other measures taken against them. Further, it was apparent from Exit ’ s annual reports that this association had twice, in 2007 and 2008, accompanied the suicide of a person suffering from a psychiatric illness ( the association ’ s Management Committee Reports for 2007 and 2008, Annexes 3 and 4). In the Government ’ s view, this showed that doctors were willing to carry out the necessary assessments and prescribe the required quantity of sodium pentobarbital. To the Government ’ s knowledge, these cases had not had legal consequences. Accordingly, the Government submitted that, if he was prepared to accept the conditions laid down by the Federal Court and confirmed by the Swiss Society for Forensic Psychiatry, the applicant could find a doctor who, after accompanying him over a certain period, would be able to attest, if appropriate, whether he fulfilled the conditions for prescription of the substance in question. 44. The Government also considered that the steps taken by the applicant to contact a doctor raised several questions. Firstly, they noted that Dignitas, which had assisted the applicant in this action, had already assisted with the suicides of several other persons suffering from mental illness. They concluded that the association must be aware of doctors who could assume responsibility for the applicant ’ s request. Secondly, they noted that, since 2006, in line with the Federal Court ’ s judgment, the Canton of Zürich had changed its practice so that doctors who drew up a prescription for sodium pentobarbital no longer faced criminal prosecution. According to the Government, once the impugned obstacle in the domestic law had been lifted, rather than seeking to contact a doctor in the Canton of Zürich, the applicant had sent a written request, certified by a notary, to 170 psychiatrists, all of whom practised in the Basle region, with the exception of one doctor who practised in Berne. Thirdly, the Government, not knowing the criteria used by the applicant in selecting the 170 addressees of his request, considered that the wording of the letter was not such as to encourage a doctor to respond positively, in that the applicant, by dismissing in advance any therapeutic treatment and requesting solely an expert assessment, ruled out any serious examination of an alternative to suicide, a step that was part of the assessment that must precede the prescription of sodium pentobarbital. 45. In addition, according to the Government, while the regulations on assisted suicide confronted the State authorities with difficult ethical questions, they created an even more delicate situation in the case of persons wishing to commit suicide who were not suffering from a terminal illness. In their view, such persons were not choosing to prefer an easy death to a death preceded or accompanied by severe suffering, as in the Pretty case (cited above) in particular, but rather choosing to prefer death to life. 46. The Government also pointed out that, under Article 2 of the Convention, the State is enjoined not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction from acts by others or, where appropriate, from themselves ( they referred to Kılavuz v. Turkey, no. 8327/03, § 78, 21 October 2008). They added that, where the authorities were aware of the risk of suicide by an individual, it was incumbent on them to do everything that could reasonably be expected of them to prevent the suicide ( ibid., § 88). 47. In this connection, the Government submitted that, in psychiatry, the wish to commit suicide was seen as a symptom of mental illness, to which the appropriate response was suitable therapy. In their view, it was therefore necessary to draw a distinction between the wish to commit suicide as an expression of illness and the wish to commit suicide as an autonomous, considered and sustained decision. Given the complexity of mental illnesses and their uneven development, such a distinction could not be made without a thorough assessment over a time period that would make it possible to verify the consistency of the wish to commit suicide. Such an examination would necessitate in-depth psychiatric knowledge and could only be conducted by a specialist. 48. The Government further submitted that the obligation to submit a medical certificate implied certain actions by the applicant. In their view, however, these did not seem insurmountable if his choice to commit suicide resulted from an autonomous and sustained decision. Such an obligation amounted to an appropriate and necessary means for protecting the life of vulnerable persons whose decision to commit suicide could be based on a temporary crisis that altered their capacity for discernment. It was well known that many suicides were not a response to a genuine wish to die, but were instead more of a cry for help, intended to draw the attention of those around them to a problem. Thus, to facilitate access to assisted suicide would almost amount to pushing such individuals to use an infallible method of ending their lives. 49. The Government also argued that the solution adopted in Switzerland corresponded to the regulations provided for in the United Nations Convention on Psychotropic Substances, and that if Switzerland were required to provide sodium pentobarbital to the applicant without a medical prescription or on the basis of a prescription that did not satisfy the medical requirements, it would be in clear violation of those regulations. They concluded that the impugned measure, necessary for the protection of life, health and safety, fulfilled the conditions of Article 8 § 2 of the Convention and did not entail a violation of that provision. B. The Court ’ s assessment 50. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91). It can sometimes embrace aspects of an individual ’ s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). Elements such as, for example, name, gender identification, and sexual orientation and sexual life fall within the personal sphere protected by Article 8 of the Convention ( see, for example, B. v. France, 25 March 1992, § 63, Series A no. 232-C; Burghartz v. Switzerland, 22 February 1994, § 24, Series A no. 280-B; Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45; and Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, § 36, Reports of Judgments and Decisions 1997 ‑ I ). Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, 31 January 1995, Series A no. 305-B, opinion of the Commission, § 45). In the Pretty case ( cited above, § 67), the Court held that the applicant ’ s choice to avoid what she considered an undignified and distressing end to her life fell within the scope of Article 8 of the Convention. 51. In the light of this case-law, the Court considers that an individual ’ s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention. 52. In the Court ’ s opinion, however, the instant case is to be distinguished from the above-cited Pretty case. Like the Federal Court, it considers that it is appropriate to state at the outset that the instant case does not concern the freedom to die and possible immunity for a person providing assistance with a suicide. The subject of dispute in this case is whether, under Article 8 of the Convention, the State must ensure that the applicant can obtain a lethal substance, sodium pentobarbital, without a medical prescription, by way of derogation from the legislation, in order to commit suicide painlessly and without risk of failure. In other words, unlike the Pretty case, the Court observes that the applicant alleges not only that his life is difficult and painful, but also that, if he does not obtain the substance in question, the act of suicide itself would be stripped of dignity. In addition, and again in contrast to the Pretty case, the applicant cannot in fact be considered infirm, in that he is not at the terminal stage of an incurable degenerative disease which would prevent him from taking his own life ( see, conversely, Pretty, cited above, § 9). 53. The Court considers that it is appropriate to examine the applicant ’ s request to obtain access to sodium pentobarbital without a medical prescription from the perspective of a positive obligation on the State to take the necessary measures to permit a dignified suicide. This presupposes a weighing of the different interests at stake, an exercise in which the State is recognised as enjoying a certain margin of appreciation ( see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290), which varies in accordance with the nature of the issues and the importance of the interests at stake. For its part, the Court has jurisdiction to review in fine whether the domestic decision complies with the requirements of the Convention ( see Pretty, cited above, § 70). 54. The Court also reiterates that the Convention must be read as a whole ( see Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC], no. 32772/02, § 83, ECHR 2009 ). In consequence, it is appropriate to refer, in the context of examining a possible violation of Article 8, to Article 2 of the Convention, which creates for the authorities a duty to protect vulnerable persons, even against actions by which they endanger their own lives ( see, on this point, Keenan v. the United Kingdom, no. 27229/95, § 91, ECHR 2001 ‑ III). For the Court, this latter Article obliges the national authorities to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved. 55. The Court also reiterates that the Convention and the Protocols thereto must be interpreted in the light of present-day conditions ( see Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; and Vo v. France [GC], no. 53924/00, § 82, ECHR 2004 ‑ VIII). However, the research conducted by the Court enables it to conclude that the member States of the Council of Europe are far from having reached a consensus with regard to an individual ’ s right to decide how and when his or her life should end. In Switzerland, pursuant to Article 115 of the Criminal Code, inciting and assisting suicide are punishable only where the perpetrator of such acts is driven to commit them by “selfish motives”. By way of comparison, the Benelux countries in particular have decriminalised the act of assisting suicide, but only in very specific circumstances. Lastly, certain other countries accept only acts of “passive” assistance. It should be noted that the vast majority of member States seem to attach more weight to the protection of the individual ’ s life than to his or her right to terminate it. It follows that the States enjoy a considerable margin of appreciation in this area. 56. With regard to the balancing of the competing interests in this case, the Court is sympathetic to the applicant ’ s wish to commit suicide in a safe and dignified manner and without unnecessary pain and suffering, particularly given the high number of suicide attempts that are unsuccessful and which frequently have serious consequences for the individuals concerned and for their families. However, it is of the opinion that the regulations put in place by the Swiss authorities, namely the requirement to obtain a medical prescription, pursue, inter alia, the legitimate aims of protecting everybody from hasty decisions and preventing abuse, and, in particular, ensuring that a patient lacking discernment does not obtain a lethal dose of sodium pentobarbital ( see, mutatis mutandis, with regard to restrictions on abortion, Tysiąc v. Poland, no. 5410/03, § 116, ECHR 2007 ‑ I ). 57. Such regulations are all the more necessary in respect of a country such as Switzerland, where the legislation and practice allow for relatively easy access to assisted suicide. Where a country adopts a liberal approach in this manner, appropriate implementing measures for such an approach and preventive measures are necessary. The introduction of such measures is also intended to prevent organisations which provide assistance with suicide from acting unlawfully and in secret, with significant risks of abuse. 58. In particular, the Court considers that the risks of abuse inherent in a system that facilitates access to assisted suicide should not be underestimated. Like the Government, it is of the opinion that the restriction on access to sodium pentobarbital is designed to protect public health and safety and to prevent crime. In this respect, it shares the view of the Federal Court that the right to life guaranteed by Article 2 of the Convention obliges States to establish a procedure capable of ensuring that a decision to end one ’ s life does indeed correspond to the free will of the individual concerned. It considers that the requirement for a medical prescription, issued on the basis of a full psychiatric assessment, is a means enabling this obligation to be met. Moreover, this solution corresponds to the spirit of the United Nations Convention on Psychotropic Substances and the conventions adopted by certain member States of the Council of Europe. 59. In this connection, the Court observes that the parties ’ views diverge considerably on the issue of effective access to a medical assessment that would be favourable to the applicant and enable him to obtain sodium pentobarbital. The Court can envisage that psychiatrists would display some reluctance when confronted with a request for a prescription of a lethal substance. It also considers, in view of the delicate question of the applicant ’ s capacity for discernment, that the threat of criminal proceedings hanging over doctors willing to provide an in-depth report in order to facilitate suicide is real ( see, mutatis mutandis, Tysiąc, cited above, § 116; see also, for example, the Federal Court ’ s judgments 6B_48/2009 and 6B_14/2009 of 11 June 2009, at paragraph 28 above ). 60. At the same time, the Court accepts the Government ’ s argument that the steps taken by the applicant to contact a doctor raise a number of questions ( see paragraph 44 above ). It notes that the Government ’ s arguments have not been entirely refuted by the applicant. It also notes that he sent the 170 letters in question ( see paragraph 17 above ) after the Federal Court had ruled on his appeal. Accordingly, these steps cannot a priori be taken into account in the present case. In any event, as the Government emphasised, the letters do not seem likely to encourage the doctors to reply favourably, given that the applicant stated that he was opposed to any form of therapy, thus excluding a more comprehensive attempt to find possible alternatives to suicide. In the light of the information submitted to it, the Court is not convinced that it was impossible for the applicant to find a specialist who would have been prepared to assist him. Consequently, in the Court ’ s opinion, the applicant ’ s right to choose the time and manner of his death was not merely theoretical or illusory (criterion laid down in Artico, cited above, § 33 ). 61. Having regard to the foregoing and to the margin of appreciation enjoyed by the national authorities in such a case, the Court considers that, even assuming that the States have a positive obligation to adopt measures to facilitate the act of suicide with dignity, the Swiss authorities have not failed to comply with this obligation in the instant case. It follows that there has been no violation of Article 8 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, finding that, even assuming that States had a positive obligation to take measures to facilitate suicide in dignity, the Swiss authorities had not breached that obligation in the applicant’s case. The Court noted in particular that the member States of the Council of Europe were far from having reached a consensus as regards the right of an individual to choose how and when to end his life. Although assistance in suicide had been decriminalised (at least partly) in certain member States, the vast majority of them appeared to attach more weight to the protection of the individual’s life than to his right to end it. The Court concluded that States had a wide margin of appreciation in such matters. Although the Court further accepted that the applicant might have wished to commit suicide in a safe and dignified manner and without unnecessary pain, it nevertheless considered that the requirement under Swiss law for a medical prescription in order to obtain sodium pentobarbital had a legitimate aim, namely to protect people from taking hasty decisions and to prevent abuse, the risks of which should not be underestimated in a system that facilitated access to assisted suicide. The Court considered that the requirement of a prescription, issued on the basis of a thorough psychiatric assessment, was a means of satisfying the obligation on States to put in place a procedure capable of ensuring that a person’s decision to end his/her life did in fact reflect his/her free will. As lastly regards the question whether the applicant had had effective access to a medical assessment that might have allowed him to obtain sodium pentobarbital (if not, his right to choose when and how he died would have been theoretical and illusory), the Court was not persuaded that it had been impossible for him to find a specialist willing to assist him as he had claimed. |
269 | (Suspected) terrorists | THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 92. The applicant argued that his removal to the Russian Federation would expose him to treatment in breach of Article 3 of the Convention. That Article reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility 93. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant (i) General situation in the North Caucasus Region 94. The applicant referred to the November 2013 report by the non-governmental organisation Action by Christians for the Abolition of Torture (ACAT). According to that report, the Russian authorities had resorted to ill-treatment and torture of Chechen fighters. 95. The applicant further cited Amnesty International’s Global Report for 2017-2018 (“State of Human Rights in the World”, 2017 2018, published on 22 February 2018), which indicates a further deterioration of the situation in Chechnya and reports enforced disappearances, unlawful detentions, torture and other ill-treatment in custody, together with extrajudicial executions, in the North Caucasus region. 96. The applicant also relied on the report by the non-governmental organisation Memorial according to which fundamental rights were not respected in Russia in criminal proceedings. He also pointed to a report entitled “L’évolution de la politique russe en matière de lutte antiterroriste” (“The Evolution of Russian Counter-Terrorism Policy”) published in 2018 by the French Institute of International Relations (IFRI), which is a research and discussion centre for the analysis of international issues. According to this report, Russian law prescribes harsher sentences for persons convicted of terrorism and extremism. 97. The applicant referred to a report entitled “Security and Human Rights in Chechnya and the Situation of Chechens in Russia” published in January 2015 by the Danish Immigration Service. One part deals with fabricated criminal cases, confessions under torture and other ill-treatment. 98. The applicant further relied on a report by the Swiss Refugee Assistance Organisation (OSAR) according to which the Chechen police systematically tortured, first, persons who refused to cooperate with them as informers and, secondly, those who adhered to fundamentalist interpretations of Islam. On this latter point, the applicant also cited a report by Dr Mark Galeotti, entitled “License to kill? The risk to Chechens inside Russia” published in June 2019. The author of this report is a researcher in the field of Russian security services at the Institute of International Relations in Prague. (ii) The applicant’s personal situation 99. The applicant began by referring to the persecution to which he had been subjected before leaving Russia (see paragraphs 4 to 8 above). At that point the only thing that could be held against him by the Federal Security Service (FSB) and ORB agents was the fact that his father and paternal uncles had been fighters. He emphasised that the veracity of this situation had been established because the OFPRA had granted him refugee status (see paragraph 17 above). 100. The applicant stated that the threats made against him prior to his departure had not ceased after he fled to France. For example, several of his close relatives had allegedly been approached by the Russian police, who were still actively interested in him (see paragraphs 11 and 13 above). 101. According to the applicant, his current profile would be an aggravating factor if he were to be deported to his country of origin. He pointed out that the CNDA had not addressed the risk he incurred as a result of his criminal conviction (see paragraph 31 above). In this regard, he stated that the Russian authorities were aware of the judgment of 16 April 2015 (see paragraph 21 above) and that, moreover, they had resumed their pressure on his family members living in Russia after its publication (see paragraphs 23, 46 and 49 above). He argued that his refugee status had been wrongly revoked as he did not constitute a serious threat to French society. 102. The applicant submitted that, in view of the persecution to which he had been subjected prior to his departure from Russia (see paragraphs 4 to 8 above), his conviction for acts of terrorism in connection with his involvement in an armed group active in the Syrian conflict (see paragraph 21 above) and the treatment inflicted on terrorist suspects by the Russian authorities, he ran a real and serious risk of being exposed to inhuman and degrading treatment if returned to his country of origin. (b) The Government (i) The general situation in the North Caucasus Region 103. At the outset, the Government observed that most of the reports by governmental and non-governmental organisations produced by the applicant were not recent ones, having been published between 2009 and 2015. Reports published in 2018 had also been submitted by him in evidence but they did not indicate any widespread practice of ill-treatment of individuals suspected of belonging to a terrorist movement. 104. The Government were of the view that the situation in Chechnya was not such as to preclude removal to that region, as the Court had previously held (they referred to R.K. and Others v. France, no. 68264/14, §§ 49-50, 12 July 2016; R.M. and Others v. France, no. 33201/11, §§ 50-51, 12 July 2016; I.S. v. France, cited above, §§ 47-48; and M.I. v. Bosnia and Herzegovina, no. 47679/17, §§ 45-46, 29 January 2019). 105. The Government also asserted that, to their knowledge, there were no reports from governmental or non-governmental organisations for the years 2017 and 2018 showing systematic practices of arbitrary detention and systematic ill-treatment of Chechens suspected or convicted of having fought for the so-called “Islamic State” organisation in Syria. 106. Lastly, the Government maintained that several Russian nationals of Chechen origin with links to a terrorist movement who had been suspected or convicted of terrorist offences and returned to Russia had not challenged the choice of that destination country and had not alleged, after their return, that they had been subjected to treatment contrary to Article 3 of the Convention. They explained that, at the time of their observations, 14 such individuals had been deported by France since 2012. 107. The Government concluded that no generalised risk of ill-treatment facing all terrorist suspects had been proven and, therefore, that the risk of being subjected to treatment contrary to Article 3 of the Convention had to be examined on a case-by-case basis. (ii) The applicant’s personal situation 108. The Government took the view that the applicant had not established the existence of a specific individual risk. 109. They first noted that, although the applicant had been granted refugee status, the OFPRA’s analysis following the applicant’s interview with a protection officer on 21 June 2012 (see paragraph 18 above) showed that he had been unable to explain why he had been instructed to contact rebels (see paragraph 5 above) or how his close relatives had obtained his Russian “external passport” from the authorities (see paragraph 6 above). 110. The Government further noted that the events that had led to the applicant’s departure from the Russian Federation and to the granting of his refugee status had occurred long ago and could not serve to substantiate the existence of any current fear of treatment contrary to Article 3 of the Convention that the applicant might sustain if he were to be deported to his country of origin. 111. In that connection, the Government emphasised that the applicant’s statements during his interview with an OFPRA official on 19 May 2015 remained imprecise and inconsistent as to the surveillance to which he and his close relatives were allegedly still subject and as to the conditions in which his Russian “domestic passport” had been recovered from the authorities (see paragraph 24 above). The Government also disputed the probative value of the witness statements and the press article produced by the applicant (see paragraphs 23, 46, 49 and 51 above). 112. The Government submitted that the applicant had used his Russian “external passport” to travel to Turkey and then to Syria (see paragraph 22 above), even though it was well known that the authorities in both countries were co-operating with Russia, and Turkey had in fact sent back jihadists of Chechen origin. The Government further noted that, by using such a travel document, the applicant, who was then claiming to be a refugee, had demonstrated his allegiance to his country of origin. 113. The Government noted that the applicant’s accomplice with the same profile as him, who had also been convicted on 16 April 2015, had left Syria and returned to Chechnya (see paragraph 22 above). They emphasised that there was no allegation that he had been ill-treated. 114. Lastly, the Government noted that the Russian authorities had not requested the applicant’s extradition or carried out the threats they had allegedly made against his relatives (see paragraphs 23, 46 and 49 above). The Government also pointed out that the applicant had not explained how the Russian authorities had been informed of his criminal conviction on 16 April 2015. Lastly, the Government stated that, if the deportation order were to be enforced, the applicant would be sent to Moscow. The Court’s assessment (a) General principles (i) Preliminary observations on the nature of interim measures 115. As a preliminary matter, the Court considers it useful to clarify the purpose and nature of an interim measure under Rule 39 of the Rules of Court, as applied in the present case on 8 March 2019 for the duration of its examination of the application. It reiterates that where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, such as that provided for in Article 3, the object of an interim measure is to preserve and protect the rights and interests of the parties to a dispute before the Court, pending its final decision. The power to indicate to the respondent State the interim measure or measures that it should adopt is exercised only in limited spheres and, as indicated above, where there is an imminent risk of irreparable damage (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 104, ECHR 2005-I). The Court has previously emphasised the special importance and vital role of interim measures in the Convention system (see, among other authorities, Paladi v. Moldova [GC], no. 39806/05, § 86, 10 March 2009, and Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 211-213, ECHR 2013 (extracts)). Where a respondent State has deported an applicant despite the application of an interim measure, the Court may conclude that the State has failed to fulfil its obligations under Article 34 of the Convention (see, for example, M.A. v. France, no. 9373/15, § 71, 1 February 2018). 116. However, it follows from the general scheme of Rule 39 of the Rules of Court that a decision on whether it should be applied in a given case will generally be made within a very short lapse of time, in order to prevent an imminent risk of irreversible harm, and often on the basis of limited information. Consequently, the full facts of the case will often remain undetermined until the Court’s judgment on the merits of the complaint to which the measure is related. Where this is possible in view of the urgency of the matter, however, the Court may invite the respondent State to provide further information before taking a decision on the request for interim measures or decide to apply Article 39 temporarily pending the receipt of such information from both parties, as it has done in the present case (see paragraphs 36 and 42 above). In any event, it is precisely for the purpose of preserving the Court’s ability to render such a judgment after an effective examination of the complaint that such measures are indicated. Until that time, it may be unavoidable for the Court to indicate interim measures on the basis of facts which, despite making a prima facie case in favour of such measures, are subsequently added to or challenged to the point of calling into question the measures’ justification (see Mamatkulov and Askarov, cited above, §§ 104 and 125, and Paladi, cited above, § 89). (ii) Application of Article 3 in expulsion cases 117. In the present case the Court would reiterate that the Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the destination country. In these circumstances, Article 3 implies an obligation not to deport the person in question to that country (see F.G. v. Sweden [GC], no. 43611/11, § 111, 23 March 2016, and A.M. v. France, no. 12148/18, § 113, 29 April 2019). (iii) Absolute nature of Article 3 obligations 118. The Court would emphasise that it is acutely conscious of the scale of the threat that terrorism represents for the community and it does not therefore underestimate the importance of the fight against terrorism. It is well aware of the immense difficulties currently faced by States in protecting their populations from terrorist violence (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996 ‑ V; Saadi v. Italy [GC], no. 37201/06, § 137, ECHR 2008; and A.M. v. France, cited above, § 112). Faced with such a threat, the Court has considered it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances (see Daoudi v. France, no. 19576/08, § 65, 3 December 2009; Boutagni v. France, no. 42360/08, § 45, 18 November 2010; Auad v. Bulgaria, no. 46390/10, § 95, 11 October 2011; A.M. c. France, cited above, § 112; and O.D. v. Bulgaria, no. 34016/18, § 46, 10 October 2019). 119. It must be observed, however, that the protection secured by Article 3 of the Convention is absolute in nature. For a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3, even where the person is regarded as representing a threat to the Contracting State’s national security (see Saadi, cited above, §§ 140 ‑ 141; Auad, cited above, § 100; and O.D. v. Bulgaria, cited above, § 46). In other words, it is not necessary for the Court to examine allegations about an applicant’s terrorist activities because they are not relevant for its analysis under Article 3, according to its current case-law (see Ismoilov and Others v. Russia, no. 2947/06, § 126, 24 April 2008, Auad, cited above, § 101; and O.D. v. Bulgaria, cited above, § 46). Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V, and J.K. and Others v. Sweden [GC], no. 59166/12, § 77, 23 August 2016). This is also true even where, as in the present case, the applicant has links with a terrorist organisation (see A.M. v. France, cited above). (iv) Principle of the ex nunc assessment of the risk 120. If the applicant has not already been deported, the material point in time for the assessment must be that of the Court’s consideration of the case. A full and ex nunc assessment is required where it is necessary to take into account information that has come to light after the final decision by the domestic authorities was taken (see Chahal, cited above, § 79; F.G. v. Sweden [GC], cited above, § 115; A.M. v. France, cited above, § 115; and D and Others v. Romania, no. 75953/16, § 62, 14 January 2020). (v) Principle of subsidiarity 121. Where domestic proceedings have taken place concerning the matter in dispute, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it will usually be for those courts to assess the evidence before them. In cases concerning the expulsion of asylum-seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Refugee Convention (see F.G. v. Sweden, cited above, § 117). As a general principle, the national authorities are best placed to assess not just the facts but, more particularly, the credibility of witnesses since it is they who have had an opportunity to see, hear and assess the demeanour of the individual concerned (see A.M. v. France, cited above, § 116). The Court must be satisfied, however, that the assessment made by the authorities of the Contracting State concerned is adequate and sufficiently supported by domestic material as well as by material originating from other reliable and objective sources (see X. v. the Netherlands, no. 14319/17, § 72, 10 July 2018). (vi) Relationship between Convention law, EU law and the Geneva Convention 122. The Court notes that EU law enshrines in primary law the right to asylum and the right to international protection (Article 78 TFEU and Article 18 of the Charter, cited in paragraphs 71 and 72 above). Furthermore, under Article 14 §§ 4 and 5 of Directive 2011/95 (see paragraph 73 above) the principle of non-refoulement, and certain rights enshrined in EU law on the basis of the Geneva Convention (Articles 3, 4, 16, 22, 31, 32 and 33 of that convention) (see paragraphs 80 and 81 above) are applicable, unlike the other rights enumerated in those two instruments, to any person present in the territory of a member State who fulfils the material conditions to be considered a refugee, even if he or she has not formally obtained refugee status or has had it withdrawn (see N. D. and N.T. v. Spain [GC], cited above, § 183, and see paragraphs 74-76 above). 123. The Court would emphasise, however, that under the terms of Article 19 and Article 32 § 1 of the Convention it is not competent to apply or examine alleged violations of EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention. Furthermore, in the context of a reference for a preliminary ruling, such as on the question whether a person remains a refugee following the withdrawal of refugee status, the CJEU, unlike the national courts and this Court, may be called upon to rule on the validity in abstracto of the possibilities offered by the provisions of EU law (see paragraph 79 above). More generally, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see N.H. and Others v. France, nos. 28820/13 and 2 others, § 166, 2 July 2020). More specifically, the Court has not, to date, ruled on the distinction made in EU and domestic law between refugee status and fact of being a refugee. The Court would emphasise that neither the Convention nor its Protocols protect, as such, the right to asylum. The protection they afford is confined to the rights enshrined therein, including particularly the rights under Article 3 of the Convention, as restated above. In that connection, Article 3 embraces the prohibition of refoulement under the Geneva Convention (see N.D. and N.T. v. Spain [GC], cited above, § 188). (vii) The risk assessment 124. The assessment of whether there are substantial grounds for believing that an applicant faces a real risk requires the Court to examine the conditions in the destination country in the light of the standards of Article 3 of the Convention. These standards entail that the ill-treatment an applicant alleges he or she will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this level is relative, depending on all the circumstances of the case ( F.G. v. Sweden [GC], cited above, § 112, and A.M. v. France, cited above, § 114). Although assessment of that risk is to some degree speculative, the Court has always been very cautious, especially where public security concerns are also at issue, and has examined carefully the material placed before it in the light of the requisite standard of proof, before indicating an interim measure under Rule 39 (see paragraphs 115 and 116 above) or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention (see Saadi, cited above, § 142). (viii) Distribution of the burden of proof 125. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention (see, as regards asylum-seekers, F.G. v. Sweden [GC], cited above, § 112, and J.K. and Others v. Sweden, cited above, § 91). In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see X. v. the Netherlands, cited above, § 74). Nevertheless, it is for such persons to prove that there are substantial grounds for believing that, if they were deported to the destination country, they would be exposed to a real risk. Where such evidence is adduced, it is for the Government to dispel any doubts that it may raise (see Saadi, cited above, § 129; M.A. v. France, cited above, § 51; and A.M. v. France, cited above, § 118). (b) Application of those principles to the present case (i) The general situation in the North Caucasus region 126. As regards the general situation in the North Caucasus region, the Court has previously found that, although there have been reports of serious human rights violations in Chechnya, the situation has not been such that any return to the Russian Federation would constitute a violation of Article 3 of the Convention (see I v. Sweden, no. 61204/09, § 58, 5 September 2013; M.V. and M.T. v. France, cited above, §§ 39-40; R.K. and Others v. France, cited above, §§ 49-50; R.M. and Others v. France, no. 33201/11, §§ 50-51, 12 July 2016; I.S. v. France, cited above, §§ 47-48; and M.I. v. Bosnia and Herzegovina, cited above, §§ 45-46). In the light of the above-mentioned international reports (see paragraphs 85 to 91 above), the Court sees no reason to revisit this conclusion and considers that the protection afforded by Article 3 of the Convention can only come into play if the applicant is able to establish that there are substantial grounds for believing that his return to the Russian Federation would, in the particular circumstances of the present case, give rise to a real risk of treatment that is prohibited by Article 3 of the Convention. 127. In this connection the Court notes that, according to international reports, certain categories of the population of the North Caucasus, and more specifically of Chechnya, Ingushetia or Dagestan, may be particularly at risk, such as members of the armed Chechen resistance, individuals regarded by the authorities as such, their close relatives, those who have assisted them in any way, civilians forced by the authorities to collaborate with them and anyone suspected or convicted of acts of terrorism (see paragraphs 85 to 91 above). The Court therefore takes the view that the assessment of the risk to the applicant must be made on an individual basis, bearing in mind that persons with a profile corresponding to one of the above-mentioned categories may be more likely than others to attract the attention of the authorities. (ii) The applicant’s personal situation 128. As is clear from the general principles set out above, while it is primarily for the applicant to produce evidence capable of demonstrating that there are substantial grounds for believing that, if the impugned deportation order were enforced, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention, when such evidence is submitted it is for the respondent State to dispel any doubts that may be raised by it. In the present case, the Court notes the general nature of the arguments put forward by the applicant to challenge the enforcement of the deportation (see paragraphs 94-102 above) but observes that his fears appear to be based on two points. The first point made by the applicant related to allegations that he had been detained and tortured in Russia because of his family ties to individuals who had taken a stand in favour of the Chechen rebels and to his refusal to co-operate with the authorities; he claimed that he was still wanted in that connection. According to him, this was the justification for the OFPRA’s decision to grant him refugee status (see paragraph 17 above). The second point made by the applicant was that the Russian and Chechen authorities had become aware of his criminal conviction in France (see paragraph 21 above) and that they were interested in him because of his links with a jihadist group in Syria (see paragraphs 23, 46 and 49 above). 129. The Court observes that, in cases concerning removal to the Russian Federation, it is the first time that it has been called upon to consider the merits of a complaint under Article 3 of the Convention by a Russian applicant of Chechen origin who claims that he would be at risk of treatment contrary to that provision on account of his criminal conviction for acts of terrorism in the respondent State. In addition, the situation is one where the applicant’s refugee status in the respondent State has been revoked (see paragraph 27 above). 130. With regard to the first point made by the applicant (see paragraph 128 above), the Court would observe, at the outset, that its task is not to draw the appropriate conclusions from the Geneva Convention, EU law or French law concerning the revocation of the applicant’s refugee status under Article L. 711-6 2° of the Immigration and Asylum Code (see paragraph 56 above). However, it considers that, for the purposes of examining the present case, it must take into account the factors that led to the granting of refugee status to the applicant by the OFPRA and the information then available to the French authorities (see paragraph 17 above) (see, mutatis mutandis, Abdolkhani and Karimnia v. Turkey, no. 30471/08, §§ 8, 9 and 82, 22 September 2009, and M.G. v. Bulgaria, no. 59297/12, § 88, 25 March 2014). At the time he was granted this status, the French authorities considered that there was sufficient evidence that he would be at risk of persecution in his country of origin if returned there. The Court is of the view, however, that this is only a starting point for its analysis of the applicant’s current situation and that it must proceed therewith solely in the light of Article 3 of the Convention (see, mutatis mutandis, M.G. v. Bulgaria, cited above, § 88). 131. The Court first observes that a certain period of time has elapsed since the events which justified the granting of refugee status to the applicant (see paragraphs 5 to 9 above). The applicant himself has argued that only two of his close relatives still reside in Chechnya and that the male members of his family have died or are beneficiaries of international protection in Europe. Furthermore, as is apparent from the statement of facts, the applicant organised his departure from France to Syria, in March 2013 (see paragraph 21 above), shortly after his interview with the OFPRA officer on 21 June 2012 (see paragraph 16 above) and the granting of refugee status on 31 January 2013 (see paragraph 17 above). It is also clear from the facts that he travelled there in early August 2013 via Germany, Poland (where he collected his Russian “external passport”), Ukraine and Turkey (see paragraph 21 above). 132. The Court notes, moreover, that in order to prove the authorities’ continuing interest in him, the applicant produced a witness statement which was appended to his application form (see paragraph 11 above). The Court agrees with the Government that this testimony is undated and that the applicant has not established a family relationship with its author. Furthermore, although during the interview with an OFPRA official on 19 May 2015 the applicant stated that the Russian prosecutor’s office had tried to contact him (see paragraph 24 above), the Court notes that he was very evasive in this regard and that there is nothing in the file to indicate that the Russian or Chechen authorities are still interested in him in connection with the events that occurred in 2011. Throughout the proceedings before the asylum authorities and the French courts it was observed that the applicant’s statements remained vague and inconsistent. 133. The Court further notes that the applicant was issued with a Russian “external passport” which he used to leave Russia (see paragraph 6 above) and then to travel in 2013 from Poland to Turkey and Syria (see paragraph 21 above). In this connection, the Court observes that the applicant has provided no explanation for the inconsistencies in his account identified by the Government, failing to explain how, in his alleged situation in 2011, he managed to obtain a Russian “external passport”. The Court reiterates that the issuance of an international travel document to a person whose activities had already attracted the attention of the Russian authorities would appear highly unlikely (see K.Y. v. France (dec.), no. 14875/09, 3 May 2011, and R.K. and Others v. France, cited above, § 54). 134. The Court further notes that in the summer of 2013, i.e. after the OFPRA’s decision granting the applicant refugee status (see paragraph 17 above), his close relatives living in Chechnya collected the Russian “internal passport” in his name for which they had applied (see paragraph 24 above). The applicant has not alleged that his relatives had problems with the Russian authorities on account of applying for and obtaining this passport. 135. As to the second point put forward by the applicant (see paragraph 128 above), the Government submitted that several other individuals who had been convicted in France for their involvement in terrorist activities had been returned to Russia without having invoked any risk under Article 3 of the Convention before the domestic authorities or the Court. The Court cannot conclude from these facts alone (which are devoid of any details enabling their scope to be assessed) that the applicant would not personally be subject to a risk of treatment prohibited by Article 3 of the Convention if returned to Russia. It notes, however, that the applicant does not contest the Government’s finding that one of his accomplices who previously returned to Chechnya from Syria has not had any problems with the authorities (see paragraph 22 above). 136. The Court notes that the applicant’s main argument consists in the allegation that the Russian and Chechen authorities are aware of his criminal conviction in France (see paragraph 21 above) and are interested in him because of his involvement with a jihadist group in Syria. The Court certainly does not entirely rule out the assumption that the Russian authorities might have become aware of the judgment delivered on 16 April 2015 by the Paris Criminal Court (see paragraph 21 above). However, there is no evidence that the Russian authorities have shown any particular interest in the applicant in connection with an alleged investigation in his country of origin on account of his links with a jihadist network in Syria. The Court notes in particular that Russia has never requested the applicant’s extradition from France or sought a copy of the judgment convicting him of terrorism-related offences. Nor does the case file show that he would be liable to arrest in Russia for offences committed on Russian soil or elsewhere. In any event, in view of the nature of the applicant’s conviction in France together with the national and international contexts, profoundly and durably marked as they are by the fight against terrorism, it cannot be ruled out that he might be subject to checks and surveillance on his return to Russia, without these measures necessarily constituting treatment prohibited by Article 3 of the Convention (see A.S. v. France, cited above, § 62). As the Court has previously found, the issue to be decided in a case such as the present one is not whether the applicant would be detained and questioned, or even subsequently convicted, by the authorities of the destination country, since this in itself would not contravene the Convention. Its concern is whether or not the applicant would be ill-treated or tortured, contrary to Article 3 of the Convention, upon returning to that country (see X v. Sweden, no. 36417/16, § 55, 9 January 2018). 137. The Court further reiterates that the national authorities are best placed to assess the applicant’s credibility since they have had an opportunity to see and hear him and to assess his demeanour (see R.C. v. Sweden, no. 41827/07, § 52, 9 March 2010; M.E. v. Sweden, no. 71398/12, § 78, 26 June 2014; and F.G. v. Sweden [GC], cited above, § 118). 138. In the present case, the Court observes that on 16 May 2019 the Lille Administrative Court dismissed the applicant’s appeal against the prefect’s directions specifying the Russian Federation as the destination country (see paragraph 48 above) after analysing, in terms of Article 3 of the Convention, the risks that he would allegedly face if the deportation were enforced. However, the Court notes that it is still necessary to determine whether, in view of the facts that led the OFPRA to grant the applicant refugee status (see paragraph 17 above), the procedure before the French authorities was appropriate and allowed for a full examination of his personal situation. The Court observes that, as can be seen from paragraph 29 above, the Versailles Administrative Court, which had previously been asked to annul the directions specifying Russia as the country of destination, had considered that the first decision taken in that regard had not been sufficiently reasoned, particularly in view of the applicant’s refugee status at that time. 139. As to the principles governing the distribution of the burden of proof (see paragraph 125 above), the Court reiterates that they apply to all expulsion cases. The Court has previously indicated that for asylum-seekers it may be difficult, if not impossible, to supply evidence within a short time, especially if such evidence must be obtained from the country from which he or she claims to have fled. Owing to the special situation in which asylum-seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when assessing the credibility of their statements and any supporting documents (see, in particular, J.K. and Others v. Sweden [GC], cited above, §§ 92-93). 140. In the light of the facts of the present case, the Court notes that the applicant’s situation is not that of an asylum-seeker who has just fled his or her country and who could therefore be considered vulnerable because of everything he or she might have been through during the migration (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 232, ECHR 2011; Ilias and Ahmed v. Hungary, [GC], no. 47287/15, § 192, 21 November 2019; and N.H. and Others v. France, cited above, § 162, 2 July 2020). The Court observes that the applicant arrived in France in 2011, that he was granted refugee status in January 2013 and that this status was revoked in 2016 following his criminal conviction in 2015 for acts committed in France, and also in Germany, Poland, Ukraine, Turkey and Syria, between 1 September 2012 and 19 November 2013, particularly for having spent almost two months in a combat zone in Syria very shortly after he was granted refugee status (see paragraph 17 above). Furthermore, as the CNDA held in its decision of 11 May 2019 rejecting the appeal against the OFPRA’s decision revoking his refugee status (see paragraph 31 above), the departure of the applicant and his accomplice for Syria had been “preceded by thorough and lengthy preparation” (see paragraphs 21 and 31 above). The Court therefore considers that it cannot be concluded from the facts of the case that the applicant should be characterised as “vulnerable” having regard to the meaning given thereto by the Court in apportioning the burden of proof in cases concerning Article 3 of the Convention, a characterisation which would have made it necessary to give him the benefit of the doubt. 141. Without prejudice to the burden of proof, the Court reiterates that a full and ex nunc assessment of the applicant’s complaint is required where account must be taken of factors which have arisen since the domestic authorities adopted the final decision (see paragraph 118 above). 142. In the present case the Court would observe, first, that on 14 May 2019, that is to say, two days before the Lille Administrative Court ruled on the risks which the applicant allegedly faced in the event of his return to Russia, the CJEU had held that the revocation of refugee status in the event of a threat to the security or society of the host member State did not mean that the person concerned was no longer a refugee (see paragraphs 74 and 76 above). Furthermore, in its judgment of 19 June 2020 (see paragraph 61 above), the Conseil d’État applied the case-law of the CJEU (see paragraph 76 above). The Court notes that although, in his appeal on points of law against the CNDA’s decision, the applicant pleaded that the CNDA had erred in law by holding that the revocation of his refugee status de facto entailed that he was no longer a refugee (see paragraph 53 above), it is clear from both the case-law of the CJEU and that of the Conseil d’État (see paragraphs 61 and 62 above), which in this case did not allow the applicant’s appeal (see paragraph 53 above), that despite the revocation of his status on the basis of Article L. 711-6 of the Immigration and Asylum Code, the applicant remained a refugee, as the CNDA had not accepted the OFPRA’s conclusion that the exclusion clause should be applied. 143. The Court further notes that the applicant has not appealed against the judgment of the Lille Administrative Court dismissing his application for annulment of the prefectoral order of 25 February 2019 (see paragraph 39 above) and that this judgment has become final. Without prejudice to the interim measure indicated under Rule 39 of the Rules of Court, the applicant could therefore be deported to the Russian Federation or to any country to which he could be legally admitted under the provisions of that order. 144. As is clear from the Court’s case-law, the fact that the person concerned is a refugee is an element which must be taken into particular account by the domestic authorities when examining the reality of the risk he or she would allegedly face in the event of expulsion (see, mutatis mutandis, Shiksaitov v. Slovakia, nos. 56751/16 and 33762/17, §§ 70-71, 10 December 2020, and Bivolaru and Moldovan v. France, nos. 40324/16 and 12623/17, § 141, 25 March 2021). In the light of what has been stated in paragraphs 142 to 143 above, the Court notes that the fact that the revocation of the applicant’s refugee status has no bearing on whether or not he remains a refugee was not taken into account by the French authorities in the context of the decision to deport him to the Russian Federation and the subsequent review of that order. The Court concludes that the French authorities and the domestic courts did not assess the risks that the applicant allegedly faced if the deportation order were to be enforced in the light of that situation and the fact that, at least when he arrived in France in 2011, the applicant had been identified as belonging to a group that was, at that time, considered to be targeted. 145. The Court does not rule out the possibility that, following a thorough and complete examination of the applicant’s personal situation and verification as to whether or not he was still a refugee, the French authorities might reach the same conclusion as the Lille Administrative Court, namely that there is no risk to him under Article 3 of the Convention if he is deported to Russia. However, the Court notes that the CNDA had issued a decision on the basis of Article L. 731-3 of the Immigration and Asylum Code (see paragraphs 63 and 64 above) and that it has in similar cases issued opinions advising against the removal of individuals to the country of their nationality on the grounds that, while they had lost refugee status they had remained refugees (see paragraphs 65 and 66 above), including in the case of the expulsion to Russia of a Russian national of Chechen origin with a profile similar (though not identical) to that of the applicant (see paragraph 65 above). The Court further notes that in both opinions the CNDA found that a decision specifying the country of destination had breached France’s obligations arising from the right of refugees to protection against refoulement, Articles 4 and 19 § 2 of the EU Charter and Article 3 of the Convention (see paragraphs 65 and 66 above). 146. In conclusion, and in the light of the foregoing considerations, the Court finds that there would be a violation of Article 3 of the Convention in its procedural aspect if the applicant were returned to Russia without an ex nunc assessment by the French authorities of the risk he claims to face if deported. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 147. The applicant argued that his removal to the Russian Federation would expose him to treatment in breach of Article 2 § 1 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” 148. The Court reiterates that it is the master of the legal characterisation of the facts in the case (see M.G. v. Bulgaria, cited above, §§ 59 ‑ 62; Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018; and Ilias et Ahmed [GC], cited above, § 176) and that it may decide not to examine a particular complaint separately, considering that it is subsumed or otherwise closely linked to a complaint that has already been dealt with. 149. Having regard to the facts of the present case, to the parties’ arguments and to the conclusion reached by the Court under Article 3 of the Convention, it considers that it has examined the main legal question raised by the application. The Court concludes that it does not need to examine the admissibility or merits of the complaint under Article 2 of the Convention (see, mutatis mutandis, R.M. and Others v. France, cited above, § 58). RULE 39 OF THE Rules of Court 150. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 151. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 44 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection (see operative part below). APPLICATION OF ARTICLE 41 OF THE CONVENTION 152. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 153. The applicant claimed 30,000 euros (EUR) for the non-pecuniary damage that he claimed to have sustained as a result of the alleged violation of Article 3 of the Convention. He added that his isolation in the administrative detention centre and periods spent under a compulsory residence order, away from his family, had exacerbated his feeling of anguish and worry about being deported to Russia. 154. The Government disputed those claims. 155. The Court observes that a violation of Article 3 of the Convention has not yet occurred in the present case. In this situation it takes the view that its finding to the effect that the deportation, if it were to be implemented without a prior ex nunc assessment of the reality of the risks faced by the applicant in the event of his return to Russia, would constitute a violation of that Article, represents sufficient just satisfaction. Costs and expenses 156. The applicant also claimed EUR 3,750 for the costs and expenses that he had incurred in the proceedings before the Court. He explained that he had already paid the sum of EUR 750 that he had been charged in respect of the interim measures and that he could not afford to pay the remaining EUR 3,000 for the proceedings on the merits of his application. 157. The Government considered that this sum was duly justified and that the applicant’s clam did not call for any particular observation on their part. 158. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award EUR 3,750, to be paid to the applicant, in respect of all costs and expenses. Default interest 162. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there would be a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention under its procedural aspect if, having had his refugee status withdrawn, the applicant were to be returned to his country of origin without any prior assessment by the French authorities of the actual and current risk that he claimed to be facing in the event of his deportation. It began by observing that both under the case-law of the Court of Justice of the European Union and under that of the French Conseil d’État, the withdrawal of refugee status had no bearing on the fact of being a refugee. The question whether the applicant remained a refugee thus should have been given specific consideration by the national authorities when they examined, under Article 3 of the Convention, the reality of the risk that he faced in the event of deportation to his country of origin. The Court found that both when his deportation was ordered and when it was reviewed by a court, the French authorities, in assessing the risks that he faced on his return to Russia, had not specifically taken account of the fact that the applicant could be presumed to have remained a refugee in spite of the withdrawal of his status. |
322 | Obligation on States to protect the victims of trafficking | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law and practice 35. Article 104a of the CC, entitled “Human trafficking”, as in force at the relevant time, reads: “(1) Any person who recruits, houses or otherwise accommodates, transports or offers, or passes on to a third party: 1. a minor (under 18 years of age); or 2. an adult, using dishonest means (paragraph 2) against this adult; with the deliberate intention of sexual exploitation of the minor or adult, exploitation through organ transplant, or labour exploitation, shall be punished by a prison sentence of up to three years. (2) Dishonest means are defined as: deceit regarding the facts; exploitation of authority, situations of distress, mental disease or any condition rendering the person defenceless; intimidation; or the granting or accepting of an advantage for surrendering control over that person. (3) A person who commits this criminal act using force or severe threats shall be punished by a prison sentence of a minimum of six months up to five years. (4) ...” 36. Article 190 of the CCP reads in its relevant parts: “The public prosecutor’s office shall refrain from pursuing the prosecution of an offence and shall discontinue the investigation if 1. the facts on which the investigation is based cannot be punished under criminal law, or if the further prosecution of the accused is inadmissible for legal reasons ...” 37. Article 193 § 2 of the CCP reads in its relevant parts: “(2) The public prosecutor’s office may order the continuation of a criminal investigation which had been discontinued pursuant to Articles 190 or 191 [of the CCP] as long as the criminal liability for the offence is not time-barred and if 1. the accused has not been questioned in relation to this offence ... and no coercive measures have been taken against him ...” 38. Article 197 § 1 of the CCP reads: “If the accused has absconded or his whereabouts are unknown, the investigation must continue in so far as it is necessary to secure traces and evidence. In this case, investigative measures and the taking of evidence, in which the accused has the right to participate ... may be carried out even in his absence. An order may be issued for the determination of the accused’s whereabouts or for his arrest. Thereafter, the public prosecutor’s office must stay the investigation and continue it after the accused has been located.” 39. Article 210 of the CCP provides that if a conviction is likely on the basis of sufficiently clarified facts, and if there are no reasons to discontinue the proceedings or withdraw the prosecution, the public prosecutor’s office has to file an indictment ( Anklage einbringen ) with the competent court. 40. Article 64 of the CC, as in force at the relevant time, provided that offences which were committed abroad could be punishable under Austrian law, inter alia, under the following conditions: “(1) Austrian law applies irrespective of the law of the country where the crime was committed in respect of the following offences: ... 4. ... slavery (Article 104), human trafficking (Article 104a), ... if Austrian interests are engaged by this offence or the offender cannot be extradited.” According to Austrian legal practice, Austrian interests are engaged if either the offender or the victim is an Austrian citizen, or the offence has a connection to Austria, or there is an obligation under international law (see Supreme Court judgments in case no. 13 Os 105/03, 24 September 2003, and case no. 15 Os 37/03, 27 March 2003). On 9 December 1981 the Austrian Supreme Court decided in case no. 11 Os 161/81, which concerned the transport and import of narcotics to Austria, that Austrian interests were in any event engaged if narcotics were brought to Austria, even though it was only for a short time. Moreover, the Supreme Court referred to a duty under international law to combat the transport of drugs. 41. Article 363a of the CCP, under the heading “Renewal of criminal proceedings” ( Erneuerung des Strafverfahrens ), provides: “1. If it is established by a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [ Bundesgesetzblatt ] no. 210/1958) or one of its Protocols on account of a decision or order of a criminal court, a retrial shall be held upon request, in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned. 2. All applications for the renewal of proceedings shall be decided by the Supreme Court. Such an application may be filed by the person affected by the violation or the Prosecutor General’s Office; Article 282 § 1 shall be applicable by analogy. The application must be lodged with the Supreme Court. If the Prosecutor General’s Office has lodged an application, the person affected must be heard; if the person affected has lodged an application, the Prosecutor General’s Office must be heard; Article 35 § 1 shall be applicable by analogy.” 42. On 1 August 2007 (in case no. 13 Os 135/06m) the Supreme Court allowed an application for the renewal of criminal proceedings under Article 363a of the CCP, where the applicant had not previously filed a human rights complaint with the Court. In so far as relevant, the Supreme Court stated: “Given that Article 13 of the Convention requires a Contracting State to provide any person who shows with some plausibility that there has been a violation of his or her rights under the Convention and its Protocols with an effective remedy, in other words to ensure that there is a court at domestic level which examines questions of whether there has been a violation of Convention rights, Article 363a § 1 of the CCP must not be interpreted so as to allow an application for the renewal of criminal proceedings only in those cases where the European Court of Human Rights has already issued a judgment finding a violation of the Convention.” For an extensive summary of the Supreme Court judgment, see ATV Privatfernseh -GmbH v. Austria (( dec. ), no. 58842/09, § 19, 6 October 2015). 43. In a judgment of 16 December 2010 (in case no. 13 Os 130/10g) concerning an application under Article 363a of the CCP, the Supreme Court clarified: “According to established case-law, a judgment by the European Court of Human Rights is not required in order to lodge an application for the renewal of criminal proceedings under Article 363a § 1 of the CCP. Persons who plausibly claim that a decision of a criminal court of last instance has violated their fundamental rights, or that they are still victims of a human rights violation by the Criminal Investigation Department, the public prosecutor’s office, or a court, even though all domestic remedies have been exhausted, are eligible to file such an application ... Persons who are affected by a violation of the Convention in their position as [private] prosecutors ... shall not have the right to lodge an application for the renewal of criminal proceedings. In the light of this intention of the original drafters of the legislation and the scope of protection, the same must apply to victims (Article 65 of the CCP) who are in such a position. Their interests are sufficiently protected by the possibility of lodging an application for the continuation of criminal proceedings (Article 195 of the CCP) ...” 44. In subsequent decisions the Supreme Court has confirmed that victims within the meaning of Article 65 of the CCP are not allowed to file applications for the renewal of criminal proceedings under Article 363a of the CCP (decisions of 15 May 2012, no. 14 Os 37/12s, and 19 February 2014, no. 15 Os 177/13p). Article 65 § 1 (a) of the CCP defines a “victim” as any person who may have been exposed to violence or a dangerous threat, or whose sexual integrity may have been interfered with because of an intentionally committed criminal offence. 45. Article 66 of the CCP, as in force at the relevant time, listed the rights of victims during criminal proceedings, such as the right to: be represented by counsel; inspect court files; be informed of the progress of proceedings; and apply for the continuation of proceedings discontinued by the public prosecutor. 46. Under the heading “special protection”, section 69a of the Residence Act ( Niederlassungs - und Aufenthaltsgesetz ), as in force at the relevant time, made provision for victims of human trafficking to obtain residence permits. B. Relevant international treaties and other international material 1. The Palermo Protocol 47. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (“the Palermo Protocol”), supplementing the United Nations Convention against Transnational Organised Crime 2000, was adopted on 15 November 2000, and came into force on 25 December 2003. It was ratified by Austria on 15 September 2005. The relevant provisions are set out in the following paragraphs. 48. Article 3 (a) defines “trafficking in persons” as: “ the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” 49. Article 3 (b) provides that the consent of a victim of trafficking to the intended exploitation is irrelevant where any of the means set forth in Article 3 (a) have been used. 50. Article 4 identifies the scope of application of the Palermo Protocol as the “prevention, investigation and prosecution of the offences established in accordance with article 5 of this Protocol, where those offences are transnational in nature and involve an organized criminal group, as well as ... the protection of victims of such offences”. 51. Article 5 (1) provides that “each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally”. 52. Article 6 deals with the assistance and protection of victims of trafficking in persons and provides, in so far as relevant: “2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative proceedings; (b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence ...” 2. The Council of Europe Anti-Trafficking Convention 53. The Council of Europe Convention on Action against Trafficking in Human Beings (“the Anti-Trafficking Convention”) was adopted by the Committee of Ministers of the Council of Europe on 3 May 2005, and entered into force on 1 February 2008. The Anti-Trafficking Convention was ratified by Austria on 12 October 2006. The relevant provisions are set out in the following paragraphs. 54. Article 2 establishes the scope of the Anti-Trafficking Convention and states that it “shall apply to all forms of trafficking in human beings, whether national or transnational, whether or not connected with organised crime”. 55. Article 4 (a) adopts the definition of “trafficking in human beings” which can be found in the Palermo Protocol, and replicates the provision in Article 3 (b) of the Palermo Protocol on the irrelevance of the consent of a victim of trafficking to the exploitation (see paragraphs 48 and 49 above). 56. Article 10 is concerned with the identification of victims and provides, in so far as relevant: “1. Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention. 2. Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.” 57. Article 18 requires States to: “... adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally.” 58. Article 27 deals with ex parte and ex officio applications and reads: “1. Each Party shall ensure that investigations into or prosecution of offences established in accordance with this Convention shall not be dependent upon the report or accusation made by a victim, at least when the offence was committed in whole or in part on its territory. 2. Each Party shall ensure that victims of an offence in the territory of a Party other than the one where they reside may make a complaint before the competent authorities of their State of residence. The competent authority to which the complaint is made, insofar as it does not itself have competence in this respect, shall transmit it without delay to the competent authority of the Party in the territory in which the offence was committed. The complaint shall be dealt with in accordance with the internal law of the Party in which the offence was committed. 3. Each Party shall ensure, by means of legislative or other measures, in accordance with the conditions provided for by its internal law, to any group, foundation, association or non-governmental organisations which aims at fighting trafficking in human beings or protection of human rights, the possibility to assist and/or support the victim with his or her consent during criminal proceedings concerning the offence established in accordance with Article 18 of this Convention.” 59. Article 31 § 1 deals with jurisdiction and requires States to adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with the Anti ‑ Trafficking Convention when the offence is committed: “(a) in its territory; or (b) on board a ship flying the flag of that Party; or (c) on board an aircraft registered under the laws of that Party; or (d) by one of its nationals or by a stateless person who has his or her habitual residence in its territory, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State; (e) against one of its nationals.” 60. With regard to Article 31 § 1 (a), the explanatory report accompanying the Anti-Trafficking Convention states: “328. Paragraph 1 (a) is based on the territoriality principle. Each party is required to punish the offences established under the Convention when they are committed on its territory. For example, a Party in whose territory someone is recruited by one of the means and for one of the exploitation purposes referred to in Article 4 (a) has jurisdiction to try the human-trafficking offence laid down in Article 18. The same applies to Parties through or in whose territory that person is transported.” 3. The Group of Experts on Action against Trafficking in Human Beings 61. In its “Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Austria, First Evaluation Round” (GRETA(2011)10, 15 September 2011), the Group of Experts on Action against Trafficking in Human Beings (hereinafter “GRETA”) found the following: “ In recent years, the Austrian authorities have taken a number of significant measures to combat trafficking in human beings (THB) on all fronts: prevention, protection of victims and prosecution of traffickers ... A series of measures designed to raise awareness on THB and to train relevant professionals have been taken by the Austrian authorities in co-operation with NGOs and intergovernmental organisations. GRETA welcomes the introduction in 2009 of special procedures to prevent THB for the purpose of domestic servitude in diplomatic households. That said, GRETA considers that the Austrian authorities should take further measures to raise awareness on the problem of THB, in particular as regards child trafficking and trafficking for the purpose of labour exploitation. More research is needed to shed light on the extent of these forms of trafficking and to guide the authorities in the development of policies to tackle them. ... As concerns measures to assist and protect victims of THB, the Austrian authorities have set up facilities and services, in co-operation with civil society, primarily tailored to the needs of female victims. The Federal Ministry of the Interior has introduced by an internal decree a recovery and reflection period of a minimum of 30 days for presumed victims of trafficking, during which time the person concerned should not be removed from Austria. However, the number of persons who have benefited from such a period is very low. ... The access to compensation for victims of THB remains limited in Austria, among other due to the low number of prosecutions and convictions of traffickers. ... Finally, GRETA considers that the Austrian authorities should review the current provisions criminalising THB with a view to addressing possible overlaps and ensuring the dissuasiveness of the penalties provided for, in order to reflect the fact that THB constitutes a serious violation of human rights. In addition, victims of trafficking should be better protected both during the legal proceedings against traffickers and afterward, in particular by making full use of the witness protection programme in respect to victims of trafficking. ... A special Central Unit in the Federal Criminal Intelligence Service within the Federal Ministry of the Interior is specialised in investigating THB and migrant smuggling. This unit has the power to conduct criminal investigations and is in regular contact with units of the regional criminal intelligence services specialised in combating THB and other serious criminal activities. In addition, it plays the role of an intermediary between the Austrian police and law enforcement agencies of other countries in the field of information exchange, participation in joint operations, etc. ... LEFÖ-IBF enjoys a special position compared to other NGOs involved in the fight against trafficking in human beings in Austria. It operates on the basis of an agreement with the Government and is financed though governmental funds, in particular for the provision of assistance to THB victims. ...” 4. The ILO Forced Labour Convention 62. The Convention concerning Forced or Compulsory Labour, adopted in Geneva on 28 June 1930 by the General Conference of the International Labour Organisation (hereinafter “the ILO”), entered into force on 1 May 1932. It was ratified by Austria on 7 June 1960. Pursuant to Article 1, “each Member of the ILO which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period”. 63. Article 2 § 1 defines “forced or compulsory labour” as: “...all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” 64. Article 25 provides: “The illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced.” C. European Union Law 1. The EU Fundamental Rights Charter 65. As a Member State of the European Union (hereinafter the “EU”) since 1 January 1995, Austria is bound to respect the rights enshrined in the EU Charter of Fundamental Rights when transposing or applying EU law. Article 5 of the Charter provides: Prohibition of slavery and forced labour “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited.” 2. The EU Anti-Trafficking Directive 66. The relevant parts of Article 2 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims read as follows: “1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. 3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. 4. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used. ...” 67. Article 10 of the Directive deals with jurisdiction and provides, in so far as relevant: “1. Member States shall take the necessary measures to establish their jurisdiction over the offences referred to in Articles 2 and 3 where: (a) the offence is committed in whole or in part within their territory; or (b) the offender is one of their nationals. ...” THE LAW I. APPLICATION OF ARTICLE 37 § 1 OF THE CONVENTION 68. By Article 37 § 1 of the Convention, the Court may decide to strike an application out of its list of cases where the circumstances lead to the conclusion that: “(a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. ...” 69. By a letter of 30 January 2015 the applicants’ representative informed the Court that he was no longer in contact with the third applicant. He believed the third applicant to have relocated to Switzerland, but was unable to take her instructions with regard to the Government’s observations. 70. The Government did not comment on this issue. 71. The Court is of the opinion that the third applicant’s failure to inform her representative of her current whereabouts must be taken as indicating that she has lost interest in pursuing her application. Although it is true that she did authorise the AIRE Centre to represent her in the proceedings before the Court, it considers that this authority does not by itself justify pursuing the examination of her application. Given the representative’s inability to establish any communication with the third applicant, the Court considers that the AIRE Centre cannot meaningfully pursue the proceedings before it ( see V.M. and Others v. Belgium [GC], no. 60125/11, § 36, 17 November 2016, with further references). 72. That being so, the Court finds that further examination of the third applicant’s application is not justified. Consequently, it concludes that the third applicant may be regarded as no longer wishing to pursue her application within the meaning of Article 37 § 1 (a) of the Convention (see, mutatis mutandis, Chirino v. the Netherlands ( dec. ), no. 31898/04, 4 May 2006, and Noor Mohammed v. the Netherlands ( dec. ), no. 14029/04, 27 March 2008). 73. The Court also notes that the third applicant has raised the same complaints as the other two applicants in the present case, which it will examine below. In accordance with Article 37 § 1 in fine, the Court therefore finds no reasons relating to respect for human rights, as defined in the Convention and its Protocols, which would require it to continue the examination of the application (see Denizci and Others v. Cyprus, nos. 25316-25321/94 and 27207/95, § 369, ECHR 2001 ‑ V). 74. Accordingly, the Court decides to strike the third applicant’s application out of its list of cases. In the following parts of the present judgment, the expression “the applicants” should be taken to refer to the first and second applicants only. II. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION 75. The applicants complained that they had been subjected to forced labour and human trafficking, and that the Austrian authorities had failed to comply with their positive obligations under the procedural limb of Article 4 of the Convention. 76. The relevant parts of Article 4 read: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. ...” A. Admissibility 1. The parties’ submissions (a) The Government 77. The Government firstly submitted that it appeared that the applicants had not complied with the six-month time-limit under Article 35 § 1 of the Convention. They stated that while the final domestic decision had been given by the Vienna Regional Court on 16 March 2012 (see paragraph 30 above), the application to the Court was dated 2 November 2012. It was therefore doubtful that the time-limit had been complied with. 78. Secondly, the Government asserted that the case should be declared inadmissible for non-exhaustion of domestic remedies, as the applicants had failed to lodge an application for the renewal of criminal proceedings under Article 363a of the CCP (see paragraph 41 above) against the decision of the Vienna Regional Criminal Court of 16 March 2012. 79. By referring to the Supreme Court’s established case-law, beginning with its ruling of 1 August 2007 (no. 13 Os 135/06m – see paragraph 42 above), the Government argued that an application for the renewal of proceedings under Article 363a of the CCP constituted an effective remedy at domestic level within the meaning of Article 13 of the Convention. The applicants could have complained of a violation of Convention rights and asked the Supreme Court to order the continuation of the criminal investigation proceedings. Lodging such an application would have led to a comprehensive examination of the compatibility of the judicial decision with Convention rights, and could have led to the renewal of the proceedings and subsequently to a new judicial decision. 80. The Supreme Court’s ruling of 1 August 2007, wherein it had held that an application for the renewal of proceedings under Article 363a of the CCP could be lodged even prior to a decision by the Court, had been widely disseminated and discussed not only amongst legal scholars, but also in daily newspapers. Further, statistics showed that people had actually made use of the remedy: 37 times in 2011 and 40 times in 2012 and 2013 respectively. 81. Also, the Supreme Court’s ruling of 16 December 2010 (case no. 13 Os 130/10g – see paragraph 43 above) had not restricted the applicants’ right to lodge an application for the renewal of proceedings, as it had merely referred to the rights of victims within the meaning of Article 66 § 1 of the CCP, and did not affect alleged violations of the Convention. (b) The applicants 82. Concerning the six-month time-limit, the applicants submitted that the Government’s doubts were mistaken. They had sent the letter of intent on 4 September 2012. The application form had been faxed and sent by post on 5 November 2012, in accordance with the deadline given by the Court. The time-limit under Article 35 § 1 of the Convention had thus been complied with. 83. With regard to the question whether domestic remedies had been exhausted, the applicants pointed to the decision of the Vienna Regional Court of 16 March 2012 (see paragraph 30 above), which expressly stated that, in accordance with Article 196 § 3 of the CCP, there was no right of appeal against that decision. This indicated already that domestic remedies had been exhausted. 84. The applicants argued that an application for the renewal of criminal proceedings under Article 363a of the CCP (see paragraph 41 above) was not an effective remedy. The Government had failed to prove that the proposed remedy had been both effective and available in theory and in practice at the relevant time. 2. The Court’s assessment 85. Regarding the Government’s contention that the application was submitted outside the time-limit provided for by Article 35 § 1 of the Convention (see paragraph 77 above), the Court notes that the applicants’ first letter of intent – which at the time of its submission was satisfactory to stop the six-month time-limit from running – reached the Court on 4 September 2012. The last domestic decision in the matter was served on the applicants’ counsel on 23 March 2012 (see paragraph 30 in fine above), hence less than six months before that date. The Court is therefore satisfied that the admissibility criterion of Article 35 § 1 in fine has been complied with. 86. Turning to the Government’s objection of non-exhaustion of domestic remedies (see paragraphs 78-81 above), the Court observes that in the case of ATV Privatfernseh -GmbH v. Austria (( dec. ), no. 58842/09, §§ 32-37, 6 October 2015) it examined in detail the question whether Article 363a of the CCP was a remedy which was readily available and sufficient to afford redress in respect of an alleged breach of rights under Article 10 of the Convention in proceedings for compensation under section 7 of the Media Act. It found that, in the circumstances of that case, an application under Article 363a of the CCP constituted an effective and sufficient remedy which an applicant would be obliged to use. However, it appears from the Supreme Court’s case-law that victims of crimes and private prosecutors as well as public prosecutors are not entitled to that remedy (see Fürst -Pfeifer v. Austria, nos. 33677/10 and 52340/10, § 31, 17 May 2016, and the judgment of the Supreme Court of 10 December 2010 (no. 13 Os 130/10g), cited in paragraph 43 above). The Government have not provided evidence to show that the availability of the remedy also extends to those groups of persons. It follows that the Government’s objection with regard to the non-exhaustion of domestic remedies has to be dismissed. 87. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 88. The applicants submitted that the credibility of their claims was highlighted by the fact that the Austrian authorities had dismissed the criminal allegations of theft made against them by their employers after the police had had an opportunity to question the applicants (see paragraph 26 above). They stressed that the authorities had accepted that their treatment fell within the notion of human trafficking, as defined by Articles 4 and 10 of the Council of Europe Anti ‑ Trafficking Convention, and the Court’s judgment in Rantsev v. Cyprus and Russia (no. 25965/04, ECHR 2010 (extracts)). 89. Moreover, the public prosecutor and the Vienna Regional Criminal Court had at no stage queried the veracity of the allegations of forced labour and human trafficking, but had simply stated that the incidents alleged to have taken place on Austrian soil were too short in duration to engage Austrian interests for the purpose of having jurisdiction over a criminal offence. It followed that the events which had occurred outside Austria were also to be considered credible. The incidents which had occurred in Austria – which had remained undisputed by the Government – could not be viewed in isolation, and had been part of an ongoing course of treatment. Indeed, the incidents prior to the applicants’ arrival in Austria had been part of the trafficking chain relevant to the trafficking situation in Austria, and should be examined as part of the respondent State’s procedural obligations (the applicants referred to Rantsev, cited above, § 307). As the applicants had been accepted in Austria as victims of human trafficking, the parts of the trafficking chain prior to their arrival in Austria, that is those parts in the Philippines (their recruitment, deception, and transportation at least) and in the United Arab Emirates (their exploitation and transportation at least), should be examined. Seeing in isolation the events which had occurred in Austria over the course of three days would be an unlawfully narrow window for examination, and was not supported by either authority or common sense. By confining their approach to their duty to investigate and prosecute the incidents in Vienna, the Government were ignoring the fact that the positive identification of a person as a victim of human trafficking was sufficient to trigger the duty under international law to investigate also those events which occurred abroad. 90. The applicants submitted that there was a difference between the duty to identify and provide substantive assistance and support to victims of human trafficking, and the procedural obligation to investigate under international and EU law. While the Government had described a range of measures that had been applied in the applicants’ case in respect of the former duty (see paragraphs 98 - 100 below), they had failed to comply with the latter. The investigation in the present case had been so inadequate as to be in breach of Article 4 of the Convention. The duty to investigate had been triggered by the applicants showing sufficient indicators to raise a credible suspicion of trafficking. In C.N. v. the United Kingdom (no. 4239/08, § 72, 13 November 2012) the Court had held that “the fact that the domestic authorities conducted any investigation into the applicant’s complaints strongly indicates that, at least on their face, they were not inherently implausible”. The applicants contended that that finding applied in their case, given that the public prosecutor had not treated their complaints as incredible or implausible, but had simply discontinued them for technical reasons. 91. In this context, the applicants alleged that the relevant Articles of the CC had been interpreted too strictly and narrowly in their case, or in the alternative, that the Articles had been too narrowly framed to begin with, giving rise to a breach of Article 4 of the Convention. 92. The applicants submitted that the respondent State’s duty to investigate had been triggered in July 2011 (see paragraph 25 above), when they had turned to the police. That duty flowed from Articles 27 and 31 of the Anti-Trafficking Convention (see paragraphs 58 and 59 above), and Articles 4, 5 and 6 of the Palermo Protocol (see paragraphs 50- 52 above). By discontinuing any investigation against the applicants’ employers at such an early stage, the Austrian authorities had failed to satisfy the key aims of the State’s international obligations relating to human trafficking, including ensuring the effective investigation and prosecution of the perpetrators of the crimes against the applicants. (b) The Government 93. The Government emphasised at the outset that there was no evidence available to them as to whether and to what extent the incidents in the Philippines and the United Arab Emirates, as submitted by the applicants, had actually occurred. Only the events and proceedings in Austria were undisputed. 94. Concerning the general and legislative measures Austria had taken in order to combat human trafficking and labour exploitation, the Government submitted that Austria was a State Party to all the relevant international legal instruments, such as the Council of Europe Anti-Trafficking Convention, the United Nations Convention against Transnational Organized Crime, and the Palermo Protocol. The first Austrian “National Action Plan against Trafficking in Human Beings” had been prepared in close cooperation with civil society organisations, and had been adopted by the Austrian Council of Ministers ( Ministerrat ) in March 2007 for a three-year period. Since then, further national action plans had been adopted. In the period 2010-11 Austria had been among the first Council of Europe member States to be evaluated by GRETA (see paragraph 61 above), whose recommendations, adopted on 26 September 2011 by the Committee of the Contracting Parties to the Anti-Trafficking Convention, had been taken into account and implemented in the National Action Plan 2012-2014, specifically concerning the exploitation of domestic staff. Austria had fully complied with its obligation to protect the victims of human trafficking and forced labour, in particular through the assistance of LEFÖ (the intervention centre which had supported the applicants during the domestic proceedings – see paragraph 25 above), which was active throughout Austria on behalf of the Ministry of the Interior ( Bundesministerium für Inneres ) and the Ministry for Education and Women ( Bundesministerium für Bildung und Frauen ). 95. The Government pointed out that Austria was therefore in full compliance with its obligations under international law. Article 104a of the CC (see paragraph 35 above), in force since 2010, constituted an adequate and efficient legal basis to prosecute and punish trafficking in human beings. In accordance with Article 64 of the CC (see paragraph 40 above), offences committed abroad were punishable even beyond the extent required by Article 31 of the Council of Europe Anti-Trafficking Convention, namely irrespective of whether the offence was punishable under criminal law in the country where it had been committed. Apart from territorial jurisdiction and the extended active and passive personality principle, Austrian laws also included a wider interpretation of the principle aut dedere aut iudicare. Austria assumed jurisdiction not only if an offender’s extradition was rejected because of his or her nationality, but also if Austrian interests were at stake (see Article 64 of the CC). The Government underlined that the Anti-Trafficking Convention did not require its States Parties to establish universal jurisdiction to combat human trafficking and forced labour. 96. The Government asserted that the provisions and measures described above had been applied in the applicants’ case, and that the actions taken by the Austrian authorities had also been in full compliance with the Convention. 97. The incidents with their former employers during their holidays in Austria, as described by the applicants, had occurred over the course of three days in July 2010. The applicants had only notified the police of these incidents approximately one year later. Even though they could not be blamed for turning to the police so late, it had made the investigation of their case more difficult. Owing to the initial investigation against the applicants because of the theft reported by their employers, the authorities had assumed that the applicants had long since left Austria, and could not be interrogated via letters of request ( Rechtshilfeersuchen ) from organs of the United Arab Emirates either. From general experience, the incidents described by the applicants as taking place at the hotel in Vienna (looking after the children, cooking and doing washing at unusual hours and in excessive amounts, intimidating behaviour on the part of their employers, and the confiscation of their passports), and especially the scene in the very popular zoo, could not be ascertained with the certainty required for criminal proceedings more than one year later. Therefore, it could no longer be assessed whether the applicants’ treatment had actually reached an intensity to be qualified as labour exploitation within the meaning of Article 4, or degrading treatment within the meaning of Article 3 of the Convention. The statements made during the questioning of the three presumed victims of human trafficking, and those of the hotel receptionist, who had only witnessed some of the incidents herself, had not seemed sufficient to substantiate such serious criminal charges. 98. The applicants had been supported first by other Filipino nationals living in Vienna, and as of 2011 also by the NGO LEFÖ. After having left their employers, they had no longer been in either a situation of exploitation, or under any conceivable threat of being exploited in the future. On the contrary, it had been with the assistance of the Austrian State that they had been able to reside lawfully in Austria. From the point when they had turned to LEFÖ – an institution financed by public funds – they had been provided with legal representation, procedural guidance, and assistance to facilitate their integration in Austria. 99. In accordance with Article 10 of the Anti-Trafficking Convention (see paragraph 56 above), the applicants had not been questioned by ordinary police officers, but by officers specially trained and experienced in cases of cross-border human trafficking and labour exploitation. During the questioning, they had been accompanied by representatives of LEFÖ (see paragraph 25 above). The applicants had not been expelled to their country of origin, nor had any other measures been taken to terminate their stay in Austria. Rather, they had been granted special protection under section 69a of the Residence Act (see paragraph 46 above), thus enabling them to reside lawfully in Austria. The applicants had therefore not only been treated in a manner going beyond Austria’s obligations under Article 10 of the Anti ‑ Trafficking Convention, but had also been given the opportunity to work and secure their own livelihood in Austria. Furthermore, a personal data disclosure ban had been imposed on the Central Register, so their whereabouts were not traceable by the general public (see paragraph 34 above). 100. The Government submitted that the Austrian authorities had also complied with their obligations under Article 27 of the Anti-Trafficking Convention (see paragraph 58 above). As described above, the applicants had been supported by LEFÖ before the police authorities, within the meaning of Article 27 § 3, and by lawyers before the Vienna public prosecutor’s office. It had not been possible to institute proceedings earlier, since the applicants’ allegations against their former employers had only been brought to the authorities’ attention in July 2011. 101. The Government contended that the applicants’ situation had thus differed significantly from the situation of applicants in previous cases before the Court, where an immediate and intensive investigation into the circumstances would have been required (the Government referred, notably, to Rantsev, cited above, § 289). In a case such as the instant one, there appeared to be no duty to cooperate with the competent authorities of the other State concerned (here, the United Arab Emirates) in the investigation of events which had occurred in that State (they cited, mutatis mutandis, Rantsev, loc. cit. ). The legal assistance necessary for conducting criminal investigations against the applicants’ former employers could not be obtained from the United Arab Emirates, as no mutual legal assistance agreement between Austria and the United Arab Emirates yet existed. Even simple requests for legal assistance had repeatedly been rejected in the past without discernible reason. There were also no indications that the applicants’ former employers were still staying in the United Kingdom, where they had allegedly planned to travel after their stay in Vienna. However, for further investigative measures, it would have been indispensable to inform the former employers of the allegations made and give them an opportunity to comment on the accusations. Under Austrian law, in the absence of an accused, it was not possible to conduct proceedings to determine the offences at issue. 102. The Government concluded by saying that there had been no violation of Article 4 of the Convention, because the general obligation to take operational measures, as detailed above, did not impose an impossible or disproportionate burden on the authorities, but required them to endeavour to provide for the physical safety of victims of trafficking in human beings, which they had done (the Government referred, mutatis mutandis, to Rantsev, cited above, § 287). 2. The Court’s assessment (a) General principles 103. The Court refers to its relevant case-law on the general principles governing the application of Article 4 of the Convention in the specific context of trafficking in human beings and forced labour (see Rantsev, cited above, §§ 272-289). It reiterates that Article 4 enshrines one of the fundamental values of democratic societies. The first paragraph of this Article makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2, even in the event of a public emergency threatening the life of a nation (see C.N. v. the United Kingdom, no. 4239/08, § 65, 13 November 2012 ). 104. The Court noted in Rantsev that trafficking in human beings was often described as a form of modern slavery, and it therefore took the view that it was in itself an affront to human dignity and incompatible with democratic and Convention values, and thus within the prohibition of Article 4, without needing to classify it as “slavery”, “servitude” or “forced labour”. The identified elements of trafficking – the treatment of human beings as commodities, close surveillance, the circumscription of movement, the use of violence and threats, poor living and working conditions, and little or no payment – cut across these three categories (see Rantsev, cited above, §§ 279-282). The Court has held that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere. It implies close surveillance of the activities of the victims, whose movements are often circumscribed. It involves the use of violence and threats against victims, who live and work under poor conditions ( ibid., § 281; see also M. and Others v. Italy and Bulgaria, no. 40020/03, § 151, 31 July 2012 ). 105. Trafficking in human beings is a problem which is often not confined to the domestic arena. When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. Relevant evidence and witnesses may be located in all States. Although the Palermo Protocol (see paragraphs 47 - 52 above) is silent on the question of jurisdiction, the Anti-Trafficking Convention (see paragraphs 53- 59 above) explicitly requires each member State to establish jurisdiction over any trafficking offence committed in its territory. Such an approach is, in the Court’s view, only logical in light of the positive obligation incumbent on all States under Article 4 of the Convention to investigate alleged trafficking offences. Member States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories (see Rantsev, cited above, § 289). 106. The Court has held that a State may be held responsible under Article 4 of the Convention not only for its direct actions, but also for its failure to effectively protect the victims of slavery, servitude, or forced or compulsory labour by virtue of its positive obligations and to conduct a comprehensive investigation (see Siliadin v. France, no. 73316/01, §§ 89 and 112, ECHR 2005 ‑ VII). It follows that States are also under an obligation to put in place a legislative and administrative framework to prohibit and punish trafficking, as well as to take measures to protect victims, in order to ensure a comprehensive approach to the issue, as required by the Palermo Protocol and the Anti-Trafficking Convention (see Rantsev, cited above, § 285). States are also required to provide relevant training for law-enforcement and immigration officials ( ibid., § 287). 107. As with Articles 2 and 3, the positive obligation to investigate is triggered as soon as a matter has come to the attention of the authorities; the investigation must fulfil the requirements of independence and impartiality, promptness and reasonable expedition, and urgency where there is a possibility of removing the individual concerned from a harmful situation. The investigation must also be capable of leading to the identification and punishment of the individuals responsible – an obligation concerning the means to be employed, and not the results to be achieved ( ibid., § 288). In addition, authorities must take all reasonable steps available to them to secure evidence concerning the incident (see, in relation to Article 3 of the Convention, Nikolay Dimitrov v. Bulgaria, no. 72663/01, § 69, 27 September 2007). Finally, the positive obligation must not be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis and in relation to Article 2 of the Convention, Maiorano and Others v. Italy, no. 28634/06, § 105, 15 December 2009). (b) Application of these principles to the instant case 108. At the outset, the Court considers that the applicants’ allegations fall within the ambit of Article 4 of the Convention, as established by its case-law on the subject (see, among other authorities, Siliadin, cited above, and Rantsev, cited above). The alleged treatment prohibited by Article 4 was not imputed to organs of the Austrian State, but to private individuals, namely the applicants’ employers, over a period of several years in Dubai and two to three days in Austria. Therefore, the present case concerns the positive obligations arising under this provision, rather than the negative obligations. 109. The Court considers that the instant case essentially raises two questions: whether the Austrian authorities complied with their positive obligation to identify and support the applicants as (potential) victims of human trafficking, and whether they fulfilled their positive obligation to investigate the alleged crimes. ( i ) Whether the positive obligation to identify and support the applicants as victims of human trafficking has been complied with 110. Concerning the first question, having regard to the applicants’ statements to the police (see paragraph 25 above), the Court notes that the authorities appear to have considered their claims credible. From the point when the applicants turned to the police, they were immediately treated as (potential) victims of human trafficking. They were interviewed by specially trained police officers (see paragraphs 25 and 99 above), were granted residence and work permits in order to regularise their stay in Austria (see paragraphs 32-33 above), and a personal data disclosure ban was imposed on the Central Register so their whereabouts were untraceable by the general public (see paragraph 34 above). During the domestic proceedings, the applicants were supported by the NGO LEFÖ, which is funded by the Government especially to provide assistance to victims of human trafficking. According to the uncontested statements of the Government (see paragraph 98 above), the applicants were given legal representation, procedural guidance and assistance to facilitate their integration in Austria. 111. For the purposes of Article 4 of the Convention, it is paramount that the applicants’ claims as a whole were taken seriously and the applicable legal framework was applied, in accordance with the State’s obligations under the Convention. From that point of view, the Court considers that the legal and administrative framework in place concerning the protection of (potential) victims of human trafficking in Austria appears to have been sufficient, and that the Austrian authorities took all steps which could reasonably have been expected in the given situation. This was not contested by the applicants. The Court is therefore satisfied that the duty to identify, protect and support the applicants as (potential) victims of human trafficking was complied with by the authorities. (ii) Whether the positive obligation to investigate the allegations of human trafficking was complied with 112. Concerning the second question, namely the procedural obligation incumbent on the Austrian authorities to investigate the applicants’ allegations and to prosecute cases of human trafficking, the Court notes that the applicants were given the opportunity to describe in detail what had happened to them and how they had been treated by their employers. The public prosecutor’s office initiated an investigation after the applicants had given their statements to the police in July and August 2011. It would not have been possible to initiate the investigation earlier, as the applicants only decided to turn to the police approximately one year after leaving their employers. However, the investigation was discontinued in November 2011, as the public prosecutor’s office was of the opinion that the applicants’ employers’ alleged conduct on Austrian territory did not fulfil the elements of Article 104a of the CC. As far as the events abroad were concerned, the public prosecutor’s office observed that the alleged crime of trafficking in human beings had been committed abroad, the accused were non-nationals, and Austrian interests were not engaged (see paragraph 27 above). The decision to discontinue the proceedings was confirmed in December 2011by the Vienna Regional Criminal Court, which added that there was no reason to prosecute if, on the basis of the results of the investigation, a conviction was no more likely than an acquittal. In its view, there was also no obligation under international law to pursue the investigation in relation to the events that had allegedly taken place abroad (see paragraph 30 above). In their observations, the Government added that requests for legal assistance had repeatedly been rejected in the past by the United Arab Emirates without discernible reason, implying that making such a request would have been of no use in the instant case (see paragraph 101 above). 113. The Court considers that, in the context of Austria’s positive obligations in the instant case, questions arise as to whether Austria was under a duty to investigate the crimes allegedly committed abroad, and whether the investigation into the events in Austria was sufficient. (α) Alleged events abroad 114. Concerning the alleged events in the United Arab Emirates, the Court considers that Article 4 of the Convention, under its procedural limb, does not require States to provide for universal jurisdiction over trafficking offences committed abroad (compare Rantsev, cited above, § 244, in relation to Article 2 of the Convention). The Palermo Protocol is silent on the matter of jurisdiction, and the Anti-Trafficking Convention only requires States Parties to provide for jurisdiction over any trafficking offence committed on their own territory, or by or against one of their nationals (ibid., § 289 – see paragraph 105 above). The Court therefore cannot but conclude that, in the present case, under the Convention, there was no obligation incumbent on Austria to investigate the applicants’ recruitment in the Philippines or their alleged exploitation in the United Arab Emirates. (β) Events in Austria 115. The applicants argued that the Austrian authorities had accepted that they were victims of the crime of human trafficking by treating them as such (see paragraphs 88-91 above). However, the Court does not consider that the elements of the offence of human trafficking had been fulfilled merely because the Austrian authorities treated the applicants as (potential) victims of human trafficking (see paragraphs 110-11 above). Such special treatment did not presuppose official confirmation that the offence had been established, and was independent of the authorities’ duty to investigate. Indeed, (potential) victims need support even before the offence of human trafficking is formally established; otherwise, this would run counter to the whole purpose of victim protection in trafficking cases. The question whether the elements of the crime had been fulfilled would have to have been answered in subsequent criminal proceedings. 116. The Court reiterates that the applicants were given the opportunity to provide a detailed account of the events to specially trained police officers. Over thirty pages of statements were drawn up by the police. Based on the descriptions given, the authorities concluded that the events – as reported by the applicants – which had taken place over a maximum of three days in Vienna did not in themselves amount to any of the criminal actions exhaustively listed in Article 104a of the CC (see paragraphs 29-30 above). No ill-treatment in Austria was reported by the applicants. The Court considers that, in the light of the facts of the case and the evidence the authorities had at their disposal, the assessment that the elements of Article 104a of the CC had not been fulfilled in relation to the events in Austria does not appear to be unreasonable. 117. Next, the Court will examine the applicants’ argument that the events in the Philippines, the United Arab Emirates and Austria could not be viewed in isolation (see paragraph 89 above). However, even if the alleged events were taken together, for the following reasons, the Court considers that there is no indication that the authorities failed to comply with their duty of investigation. The Austrian authorities were only alerted approximately one year after the events in Vienna, when the applicants’ employers had long left Austria and had presumably returned to Dubai. Therefore, the only further steps the authorities could possibly have taken were: requesting legal assistance from the United Arab Emirates; attempting to question the applicants’ employers by means of letters of request, hence giving them the opportunity to make a statement in their defence; and issuing an order to determine their whereabouts ( zur Aufenthaltsbestimmung ausschreiben ) under Article 197 of the CCP (see paragraph 38 above). From the information submitted, the Court considers that the authorities could not have had any reasonable expectation of even being able to confront the applicants’ employers with the allegations made against them, as no mutual legal assistance agreement exists between Austria and the United Arab Emirates. In this regard, the Government referred to their experience that even simple requests for legal assistance had been refused in the past without discernible reason (see paragraph 101 above). It does not appear that the steps described above, albeit possible in theory, would have had any reasonable prospects of success and would therefore have been required. In addition, the Court emphasises that, under Austrian law, the public prosecutor’s office has a certain margin of appreciation – based on the principle of proportionality – when deciding which cases to pursue and which to discontinue (Article 210 of the CCP, see paragraph 39 above). Moreover, in accordance with Article 197 of the CCP (see paragraph 38 above), it is not possible to conduct criminal proceedings in the absence of the accused. Lastly, in accordance with Article 193 § 2 of the CCP (see paragraph 37 above), the public prosecutor can – within the statute of limitations – reopen and continue the investigation into the applicants’ allegations if there are legal and factual grounds to do so. The foregoing considerations enable the Court to conclude that the investigation conducted by the Austrian authorities in the applicants’ case was sufficient for the purposes of Article 4 of the Convention. (iii) Conclusion 118. In the light of the above, the Court considers that the Austrian authorities complied with their duty to protect the applicants as (potential) victims of human trafficking. In finding that they did not have jurisdiction over the alleged offences committed abroad, and in deciding to discontinue the investigation into the applicants’ case concerning the events in Austria, they did not breach their positive obligation under the procedural limb of Article 4 of the Convention. Therefore, there has been no violation of that provision. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 119. The applicants further submitted that the treatment they had suffered met the minimum level of severity under Article 3 of the Convention, and that there had been a breach of the respondent State’s procedural obligation to duly investigate their case. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 120. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible. 121. The applicants submitted in their observations that, strictly speaking, it would be unnecessary to consider the same set of facts under Article 3 if the Court examined the failure to investigate under Article 4 of the Convention. 122. The Government submitted essentially the same observations in relation to the applicants’ complaints under Articles 3 and 4 of the Convention (see paragraphs 78-102 above). 123. In line with the applicants’ submissions, the Court considers that the test of the State’s positive obligations under the procedural limb of Article 3 of the Convention is very similar to that under Article 4, which has been comprehensively examined above (compare, for example, Jeronovičs v. Latvia [GC], no. 44898/10, § 107, 5 July 2016 in relation to Articles 2 and 3, and Rantsev, cited above, §§ 232, 288-89 and 299-300 in relation to Article 4). For essentially the same reasons (see paragraphs 112 ‑ 18 above), the Court concludes that there has been no violation of the State’s positive obligations under Article 3 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 124. The applicants submitted that, even though in their specific case Austria had identified them as victims of human trafficking, the lack of a formal recognition system was in itself capable of giving rise to a breach of Article 8 of the Convention. 125. As the Court has set out in its findings concerning Article 4 of the Convention, it is satisfied that the applicants have been treated as (potential) victims of trafficking in human beings, in line with Austria’s domestic and international legal obligations (see paragraphs 110-11 above). In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from this complaint. It must therefore be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. | The Court, finding that the Austrian authorities had complied with their duty to protect the applicants as (potential) victims of human trafficking, held that there had been no violation of Article 4 (prohibition of forced labour) and no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It notably noted that there had been no obligation under the Convention to investigate the applicants’ recruitment in the Philippines or their alleged exploitation in the United Arab Emirates, as States are not required under Article 4 of the Convention to provide for universal jurisdiction over trafficking offences committed abroad. Turning to the events in Austria, the Court concluded that the authorities had taken all steps which could have reasonably been expected in the situation. The applicants, supported by a government-funded NGO, had been interviewed by specially trained police officers, had been granted residence and work permits in order to regularise their stay in Austria, and a personal data disclosure ban had been imposed for their protection. Moreover, the investigation into the applicants’ allegations about their stay in Vienna had been sufficient and the authorities’ resulting assessment, given the facts of the case and the evidence available, had been reasonable. Any further steps in the case – such as confronting the applicants’ employers – would not have had any reasonable prospect of success, as no mutual legal assistance agreement existed between Austria and the United Arab Emirates, and as the applicants had only turned to the police approximately one year after the events in question, when their employers had long left the country. |
827 | Right to vote (Article 3 of Protocol No. 1) | relevant domestic LEGAL FRAMEWORK AND PRACTICE the Constitution 37. The relevant parts of the Constitution of the Republic of Slovenia read as follows: Article 90 (Legislative Referendum) “...The right to vote in a referendum is enjoyed by all citizens who are eligible to vote in elections ...” Article 160 (Powers of the Constitutional Court) “The Constitutional Court decides: on the conformity of laws with the Constitution; on the conformity of laws and other regulations with ratified treaties and with the general principles of international law; .... on constitutional complaints stemming from the violation of human rights and fundamental freedoms by individual acts; ...” Legislation and case-lawVotingLegalisation VotingLegalisation Legalisation VotingLegalisation Legalisation Legalisation 38. The Elections Act (the National Assembly Elections Act) regulates elections to the National Assembly. Its provisions are also used, mutatis mutandis, with respect to European Parliament elections and public referendums. It was enacted in 1992. On 20 April 2017 it was amended by the 2017 Amendment, which was enacted following the Constitutional Court’s 2014 decision (see paragraphs 43-45 below). Pursuant to the Elections Act there are eight electoral constituencies which are each further divided into eleven electoral districts. Elections are run by electoral bodies, that is by constituency election commissions (one for each electoral constituency), district election commissions (one for each electoral district) and election committees (one for each polling station), which each have different responsibilities. The Elections Act provides that voters should normally exercise their right to vote at the polling station in the local area of their permanent residence. Such areas are determined by the district election commissions for each electoral district. The district election commissions also issue decisions appointing members of election committees which are responsible for practical tasks, such as registering the voters and handing out the ballot papers, and for ensuring that voting at the polling stations is carried out in accordance with law. The National Election Commission ensures the legitimacy of elections and the uniform application of the provisions of the Elections Act. It also co-ordinates and oversees the work of, inter alia, district election commissions. 39. The Elections Act and the Referendums Act (the Referendums and Popular Initiatives Act) provide that the right to vote in elections or referendums, respectively, should be exercised in person, freely and by secret ballot. 40. Under the Elections Act, if a voter has difficulties casting his or her vote owing to a physical disability or to illiteracy, he or she has the right to be accompanied by a person who will help him or her to complete or deposit his or her ballot paper. A decision thereon shall be taken by the election committee and shall be entered in the minutes (section 79). Voters who cannot go in person to the polling station for reasons of illness may vote in their homes before an election committee (section 83). 41. Until 31 January 2018 the Elections Act provided that each district commission should designate at least one polling station that would be accessible to people with disabilities in that electoral district. At that polling station, the district commission could also facilitate voting by way of specially adapted ballots and voting machines. 42. Since 1 February 2018, under the 2017 Amendment (see paragraph 38 above) all polling stations have had to be accessible to people with disabilities, while the possibility of voting by voting machine is no longer provided for (section 79a of the (amended) Elections Act). The 2017 Amendment introduced an additional voting option for people with disabilities, namely voting by post (as of 20 May 2017). Prior to the 2017 Amendment this option was limited to people residing in homes for the elderly and voters undergoing hospital treatment. The Constitutional Court’s 2014 decision 43. In decision no. U-I-156/11, Up-861/11 of 10 April 2014, the Constitutional Court assessed the compliance of the Elections Act with the Constitution, pursuant to a petition lodged by, inter alios, H. and the second applicant. It found that the relevant provision of that Act did not constitute an appropriate “accommodation” sufficient to enable people with disabilities to independently physically access polling stations in public buildings; that shortcoming was in breach of the right of people with disabilities to non-discriminatory treatment (and thus constituted indirect discrimination) in respect of their right to vote. In particular, it found that not all polling stations were physically accessible to voters with disabilities, even though achieving such accessibility would not have entailed placing a disproportionate or unnecessary burden on the State. It changed its previously expressed view (given in respect of case no. U-I-25/10) to the effect that it sufficed for electoral bodies to inform the public of those polling stations that were physically accessible to people with disabilities. It now required all polling stations to be accessible. 44. With regard to the selection of polling stations that enabled the possibility to vote with the help of specially adapted ballots and voting machines, the Constitutional Court found that that had been left entirely to the discretion of district election commissions, which was unconstitutional. While all polling stations had been equipped with a tactile voting device for blind people, the same was not true for voting machines. The Constitutional Court, however, acknowledged that the provision of voting machines was a costly project and noted that that was a factor that could be taken into account by the legislature when formulating new regulatory measures in this field. It also noted that in the previous round of elections fifty-five polling stations had been equipped with voting machines. It left open the question of whether any new regulation that would lead to fewer, equal or more voting machines would be compatible with the Constitution. 45. The Constitutional Court ordered that the incompatibility with the Constitution be remedied within two years of the publication of its decision. It furthermore addressed the constitutional complaint lodged simultaneously by H. It found that as the elections concerned had already been completed, a favourable outcome could have not improved H.’s legal position. In the court’s view, H. had achieved the aim that he had pursued through the constitutional complaint, as the petition that he had simultaneously lodged had been successful and he had therefore succeeded in improving his situation for the next elections. He thus had no legal interest in a decision on the constitutional complaint. RemediesSystem of appeal under the electoral law System of appeal under the electoral law System of appeal under the electoral law 46. Under the Elections Act, each voter may lodge a complaint with his or her constituency election commission (see paragraph 38 above) regarding any irregularities in the work of the election committee or of the district election commission. A complaint may be lodged within three days of the election day in question. The constituency election commission must decide on such a complaint within forty-eight hours and then (if necessary) take remedial measures (for example, annul and re-run the voting within the electoral district in question or determine again the results) only if complained of irregularities in respect of the voting or the work of the election bodies considerably affected or could affect the results of the election. Similar provisions are contained in the Referendums Act, under which voters may lodge complaints with the National Commission. The latter may take remedial measures only if irregularities influenced or could have influenced the outcome of the referendum in question. 47. The Elections Act and the Referendums Act differ as regards the remedies that they respectively provide in respect of a decision issued by an electoral body dismissing a complaint lodged by a voter. Under the Referendums Act, a voter may lodge an appeal with the Administrative Court, which must decide on such an appeal within forty-eight hours. However, no such appeal is provided for under the Elections Act, and according to a Constitutional Court decision (U-I-100/13, Up-307/12) of 10 April 2014, the only court with the authority to decide such cases is the Constitutional Court. The decisive question in proceedings under any of the above-mentioned Acts is whether the alleged irregularities considerably affected or could have affected the results of the voting; only when this is so can such complaints be upheld (ibid.; see also Constitutional Court decision U-I-191/17 of 25 January 2018). Remedies concerning violations of human rights (a) The Administrative Disputes Act 48. In an administrative dispute, the court concerned shall rule on the legality of (i) final administrative acts that encroach on the legal status of the plaintiff and (ii) the legality of individual acts and actions interfering with human rights and fundamental freedoms, unless a different form of judicial protection is ensured. In cases of an alleged infringement of human rights (section 4), the plaintiff may lodge an application seeking (i) the annulment, issuance or modification of the act in question, (ii) official recognition that there has been a violation of human rights, (iii) the prohibition of the continuation of the interference, and (iv) the elimination of the consequences of the interference (section 33). Such an application must be lodged within thirty days of the delivery of the act in question or within thirty days of the relevant interference with human rights. 49. By decision no. Uv 9/2014 of 22 July 2014 the Supreme Court rejected an appeal against a certain decision adopted by a district election commission. It found that, given the fact that the election in question had already taken place, it would be possible to seek a finding of a violation of human rights under section 33 of the Administrative Disputes Act. 50. The applicants submitted decisions from 2010, 2011 and 2013 by which the Administrative Court had rejected – on the merits – actions relating to access to voting brought by individuals with disabilities; in at least one of those cases, the Administrative Court’s decision had been upheld by the Supreme Court. (b) The Obligations Code 51. Monetary compensation for non-pecuniary damage may be sought only in respect of cases specified in the Obligations Code. In judgment no. II Ips 99/2013 of 5 November 2015 concerning an instance of alleged discrimination against a voter with a disability, the Supreme Court noted that the right to vote could not be considered to constitute a “personality right” and that non-pecuniary damages could therefore not be awarded under the Obligations Code. An aggrieved party could, however, bring an action seeking a finding of a violation of human rights under section 4 of the Administrative Disputes Act (see paragraph 48 above). (c) The Protection against Discrimination Act 52. The Protection against Discrimination Act entered into force on 24 May 2016. It established a special body for overseeing protection against discrimination – namely the Advocate of the Principle of Equality (“the Advocate”). The Protection against Discrimination Act defines what is meant by the term “discrimination”, and sets out measures to promote equal treatment, the procedure to be followed when lodging a complaint with the Advocate, and judicial remedies that may be sought. Under section 39, a claimant may bring an action seeking an end to discrimination, or compensation for discrimination, or the publication of the ruling in the media. Compensation should be paid by the perpetrator of the discrimination in question in an amount ranging from 500 to 5,000 euros. The duration of the discrimination in question, the severity of the discrimination and other factors shall be considered when determining the amount of compensation to be awarded. Provisions of the Act that govern civil procedure shall apply to the adjudication of an action lodged under section 39 of the Protection against Discrimination Act. 53. The Protection against Discrimination Act replaced the Implementation of the Principle of Equal Treatment Act, which had been in force since 2004. Under the latter, people who had suffered discrimination had the right to compensation according to the general principles of civil law (that is to say only with respect to any pecuniary damage suffered, see paragraph 51 above). Relevant international material United Nations Convention on the Rights of People with Disabilities (CRPD) and related practice 54. The relevant parts of the CRPD are set out in Guberina v. Croatia, no. 23682/13, § 34, 22 March 2016. Furthermore, the following passages from the CRPD, ratified by Slovenia on 24 April 2008, are particularly relevant to the present case: Article 29 - Participation in political and public life “States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to: a. Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by: i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use; ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate; iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice; ...” 55. The CRPD Committee’s General Comment No. 2 (adopted on 11 April 2014), concerning Article 9 of the CPRD, reads, in so far as relevant, as follows: “14. .... The right to access for persons with disabilities is ensured through strict implementation of accessibility standards. Barriers to access to existing objects, facilities, goods and services aimed at or open to the public shall be removed gradually in a systematic and, more importantly, continuously monitored manner, with the aim of achieving full accessibility. ... 23. Since accessibility is a precondition for persons with disabilities to live independently, as provided for in article 19 of the Convention, and to participate fully and equally in society, denial of access to the physical environment, transportation, information and communication technologies, and facilities and services open to the public should be viewed in the context of discrimination. ... ... 25. Accessibility is related to groups, whereas reasonable accommodation is related to individuals. This means that the duty to provide accessibility is an ex ante duty. States parties therefore have the duty to provide accessibility before receiving an individual request to enter or use a place or service. ... Accessibility standards must be broad and standardized. In the case of individuals who have rare impairments that were not taken into account when the accessibility standards were developed or who do not use the modes, methods or means offered to achieve accessibility (not reading Braille, for example), even the application of accessibility standards may not be sufficient to ensure them access. In such cases, reasonable accommodation may apply. ... The obligation to implement accessibility is unconditional, i.e. the entity obliged to provide accessibility may not excuse the omission to do so by referring to the burden of providing access for persons with disabilities. The duty of reasonable accommodation, contrarily, exists only if implementation constitutes no undue burden on the entity. 26. The duty to provide reasonable accommodation is an ex nunc duty, which means that it is enforceable from the moment an individual with an impairment needs it in a given situation ... Here, accessibility standards can be an indicator, but may not be taken as prescriptive. Reasonable accommodation can be used as a means of ensuring accessibility for an individual with a disability in a particular situation. ...” 56. The relevant passages from the CRPD Committee’s General Comment No. 6 (adopted on 26 April 2018) on equality and non ‑ discrimination read as follows: “42. Because the gradual realization of accessibility in the built environment, public transportation and information and communication services may take time, reasonable accommodation may be used as a means to provide access to an individual in the meantime, as it is an immediate duty. ... ... 70. Exclusion from electoral processes and other forms of participation in political life are frequent examples of disability-based discrimination. They are often closely linked to denial or restriction of legal capacity. States parties should aim to: ... (b) Ensure that the electoral process is accessible to all persons with disabilities, including before, during and after elections; (c) Provide reasonable accommodation to individual persons with disabilities and support measures based on the individual requirements of persons with disabilities to participate in political and public life; ...” 57. Under the Optional Protocol to the CRPD, the CRPD Committee examined communication no. 19/2014, submitted by Fiona Given against Australia, in which the author, who suffered from cerebral palsy, complained that during federal elections in 2013 she had been given no choice but to vote with the aid of her attendant. She had been unable to use electronically assisted voting, which was normally available to people with visual impairments, and had been denied assistance by the electoral officer. On 16 February 2018 the CRPD Committee found that none of the options available to the author had enabled her to exercise her right to vote in the way that she had wanted – namely, without having to reveal her political choice to the person accompanying her. The CRPD Committee furthermore noted that access to the use of an electronic voting system would have enabled her to cast an independent and secret ballot without having to reveal her political choice to anyone, on an equal basis with others. It went on to find as follows: “8.9 In the present case, the [CRPD Committee] also recalls that the electronic voting option has been widely used for persons with visual impairments in New South Wales State elections since 2011. It also notes that the State party has not provided any information that could justify the claim that the use of such an electronic voting option would have constituted a disproportionate burden, so as to prevent its use in the 2013 federal election for the author and for all persons requiring such accommodation. The [CRPD Committee] also recalls that article 5 enshrines the principle of equal protection of all persons before and under the law. States parties must prohibit all disability-based discrimination and provide persons with disabilities effective and equal protection against discrimination on all grounds. [reference omitted] This conventional obligation implies that States parties must ensure the realization of the rights under the Convention for all persons with disabilities, and refrain from establishing discriminatory legislation and practice that can result in factors of discrimination depending on the type of impairment. 8.10 The [CRPD Committee] therefore finds that the failure to provide the author with access to an electronic voting platform already available in the State party, without providing her with an alternative that would have enabled her to cast her vote without having to reveal her voting intention to another person, resulted in a denial of her rights under article 29 (a) (i) and (ii), read alone and in conjunction with articles 5 (2), 4 (1) (a), (b), (d), (e) and (g) and 9 (1) and (2) (g) of the Convention.” relevant council of europe documents 58. The Revised Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections (“the Revised Interpretative Declaration”) was adopted by the Council for Democratic Elections at its 39th meeting (Venice, 15 December 2011) and by the Venice Commission at its 89th plenary session (Venice, 16-17 December 2011). It reads, in so far as relevant, as follows: “II. THE FOLLOWING COMPLETES THE PRINCIPLES STATED IN THE CODE 1. Universal suffrage 2. Universal suffrage is a fundamental principle of the European Electoral Heritage. People with disabilities may not be discriminated against in this regard, in conformity with Article 29 of the Convention of the United Nations on the Rights of Persons with Disabilities and the [case-law] of the European Court of Human Rights. 3. Voting procedures and facilities should be accessible to people with disabilities so that they are able to exercise their democratic rights, and allow, where necessary, the provision of assistance in voting, with respect to the principle that voting must be individual (the Code, item I.4.b). 4. The application of Universal Design principles and direct and/or indirect participation of the user in all design stages are effective means for improving the accessibility of polling stations and election procedures to cast one’s vote and for getting access to information on elections ... ... 4. Secret suffrage 7. The right of people with disabilities to vote by secret ballot should be protected, inter alia, by “guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing them to use assistance technologies and/or to be assisted in voting by a person of their own choice” in conditions which ensure that the chosen person does not exercise undue influence.” 59. In Resolution 2155 (2017), adopted on 10 March 2017 and entitled “The political rights of persons with disabilities: a democratic issue”, the Parliamentary Assembly of the Council of Europe called on member States to, inter alia : 4.4. with regard to accessibility of polling stations, ...: 7.4.1. ensure physical accessibility of public buildings, including polling stations, ... and guarantee that at least one polling station in every election district provides full accessibility; ... 7.4.3. provide ballot papers in accessible formats and tactile voting devices for blind people in at least one polling station in every election district; ... 7.5. with regard to assistance with voting and to remote and alternative voting: 7.5.1. provide, when requested, assistance with voting via supported decision making, and respect for the voter’s free will; ... 7.5.4. set up mobile voting units and propose, when possible, electronic voting for cases where persons with disabilities are not in a position to go to a polling station; ...” European union – EUropean Economic and Social Committee 60. Relevant comparative information concerning access to voting in the EU member States may be found in the information report entitled “Real rights of people with disabilities to vote in European Parliament elections” issued in March 2019 by the Section for Employment, Social Affairs and Citizenship of the European Economic and Social Committee (EESC). According to the report, eleven EU countries apply the general principle that all polling stations have to be adapted to suit the needs of persons with disabilities. However, the report finds that this accessibility is understood rather narrowly in practice – only as a lack of physical barriers to wheelchair users arriving at a polling station accompanied by other people who might, if necessary, help to push a wheelchair (6.2.3). Six EU countries have no rules on adapting polling stations to the needs of people with disabilities (ibid.) and no EU member State has implemented comprehensive solutions (6.2.11). Some of the most frequent difficulties include: “excessively small voting booths, major difficulties in using them by wheelchair users ..., [a] lack of choice [regarding] how to fill out the ballot paper (sitting or standing), overly small tables to fill in ballot papers ..., [and the] location of the slot in the ballot box in a way that [prevents] some voters with disabilities from independently inserting their ballot” (6.2.13). As regards voting with the assistance of a freely chosen person, the report notes that in most EU member States, such assistance is permitted, but that in only some of them can a member of an electoral commission be designated to undertake the role of an assistant. (6.2.6). 61. As regards voting at a polling station, the report makes the following comments (6.2.18): “a) Despite the existing rules, the vast majority of polling stations in the EU are not fully or generally adapted to the needs of persons with various types of disabilities and this cannot be corrected quickly. Therefore, the best remedy to this situation for the time being is to allow voters with disabilities to change polling stations, if the polling station has been designated in connection with the place of residence. The administrative procedure leading to such a change should be simple and quick. b) All voters with disabilities should be free to choose the person who will assist them during elections at the polling station. The additional conditions for such assistants in many countries do not seem warranted. ... d) It is of the utmost importance to draw up very detailed principles (in the form of legal rules or instructions for local authorities and electoral commissions) specifying the electoral commissions’ facilities and how their work is organised. Those rules should specify, among other things, the structure of areas in which people may move around unhindered; the size, location, and facilities of voting booths; the accessibility of the ballot box; as well as parking arrangements and access to the polling station.” 62. The report considers voting by mobile ballot box to be an effective way to enable persons with disabilities to take part in voting and notes that that option could be combined with postal voting (6.6.8). Moreover, until the accessibility of polling stations is improved, it suggests as a provisional solution the taking of ballot papers and the placing of a small additional ballot box in front of the polling station so that voters may cast their vote there (ibid.). The report also notes the fact that electronic voting using stationary devices in polling stations does not render it substantially easier for people with disabilities to participate in elections. In order to change that, it declares it necessary to put in place technical arrangements allowing people with various disabilities to operate such devices independently and to ensure genuine privacy and secrecy for voters (6.8.4). Organisation for Security and Co-operation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR) 63. ODIHR found in its Election Assessment Mission Final Report on 2011 early parliamentary elections in Slovenia, published on 7 February 2012, that although Slovenian law provided for measures to enable the participation of voters with disabilities, access to polling stations remained an issue. As regards the secrecy of the voting procedure, ODIHR noted that votes cast using voting machines had a different format from other ballots and were often low in number, thereby potentially compromising the secrecy of the vote. In its Election Assessment Mission Final Report on early parliamentary elections held in 2018 in Slovenia, which was published on 12 September 2018, ODIHR noted that almost full compliance had been achieved in rendering polling stations physically accessible for voters with disabilities. It also suggested that e-voting could provide a viable alternative method of allowing voters with disabilities to exercise their suffrage rights without assistance. THE LAW JOINDER OF THE APPLICATIONS 64. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. locus standi with respect to application no. 34591/19 65. The Court notes that the first applicant died soon after lodging the application with the Court and that his daughters, Nataša Toplak and Renata Toplak, expressed the wish to continue the proceedings before the Court in his stead. They submitted a copy of the relevant inheritance decision, which shows that they are the sole heirs of the first applicant. The Court, having regard to its relevant case-law (see, for instance, Jama v. Slovenia, no. 48163/08, § 28, 19 July 2012), accepts that the aforementioned heirs may pursue the application initially lodged by the first applicant. Any submissions made by them will be referred to as “the first applicant’s submissions”. THE government’S PRELIMINARY OBJECTIONs 66. The Government pointed out that the applicants had not raised the issue of the non-availability of voting machines in the applications that they had lodged with the Court and had not submitted with their applications any documents related to the constitutional review concerning, inter alia, the use of voting machines (see paragraph 31 above). 67. The Government furthermore argued that the applicants had in their remedies cited the need for polling stations, voting booths, tables and ballot boxes to be physically accessible, but had provided no or insufficient information regarding their actual participation in the 2015 Referendum. In his constitutional appeal, the first applicant had not detailed the circumstances of his participation in the 2015 Referendum. The second applicant had alleged in his constitutional appeal that the polling station had been inaccessible, even though he had previously acknowledged in his appeal to the Supreme Court that he had, in fact, voted. 68. The Government also asserted that the applicants had failed to exhaust the available domestic remedies because they had not brought an action under section 4 of the Administrative Disputes Act seeking a finding of a violation of human rights (see paragraph 48 above). Moreover, they had not sought remedies under the Elections Act and the Referendums Act (see paragraphs 46-47 above) and had not availed themselves of the remedy available under section 39 of the Protection against Discrimination Act (see paragraph 52 above) with respect to the alleged discrimination that they had suffered during the 2019 EP Elections. 69. The Government also alleged that the applicants had failed to comply with the six-month time-limit with respect to their complaints concerning the 2015 Referendum. While the applicants had lodged their application within six months of the dismissal of their constitutional complaints, the actions that they had brought in the Administrative Court had been premature (they had brought them before, instead of after, the referendum). 70. The applicants argued that they had used all the available remedies, including lodging a constitutional complaint and lodging a petition for constitutional review. They contested the Government’s argument that the present case did not concern voting machines and pointed out that they had argued before the domestic authorities that polling stations should be fully accessible (which would necessitate the facilitating of access to all elements of the voting process). In the proceedings before the Constitutional Court they had relied on the CRPD Committee’s decision of 2018 (see paragraph 57 above), which concerned also voting machines. 71. The Court observes that in their respective application forms the applicants did not explicitly raise the issue of the availability of voting machines. However, the alleged lack of accessibility comprised various aspects, and there is no reason why the lack of voting machines should not be considered among them. The Court notes in this regard that with respect to the 2019 EP Elections the applicants alleged, inter alia, that “no accessible voting methods or equipment [had been] available” (see paragraph 29 above). They referred to the standards of accessibility set out in the relevant international material, with which in their view the Slovenian authorities should have been familiar. The Court also finds it important that one set of proceedings before the Constitutional Court, in which both applicants participated, concerned precisely this issue. It is true that the applicants did not submit information concerning those proceedings in their applications, but they were bound up with the first applicant’s constitutional complaint (see paragraphs 15 and 31 above) and at the time at which the applications were lodged the constitutional review was still pending. The constitutional review proceedings ended with the Constitutional Court’s decision (see paragraphs 33 to 36 above), which was issued after the applications had been lodged with the Court. The Court lastly notes that the Government extensively commented on whether voting machines were required, especially after the delivery of the aforementioned Constitutional Court’s decision. Hence, the first preliminary objection is dismissed (see paragraph 66 above). 72. As regards the precise circumstances concerning the applicants’ participation in the 2015 Referendum and in the 2019 EP Elections, the Court cannot lose sight, firstly, of the fact that their original complaints concerned their alleged inability to vote on an equal basis with others over a long period of time in several elections and referendums, but that the Government were given notice only of the complaints concerning the 2015 Referendum and the EP 2019 Elections (the remaining complaints having been rejected as inadmissible at an earlier stage of the proceedings). Secondly, as regards the facts submitted in the domestic proceedings, the Court observes that the applicants brought actions prior to the 2015 Referendum and that their arguments were largely based on their previous experiences. Having said that, the uncertainties regarding certain factual issues will be addressed when the applicants’ complaints are examined on the merits. This preliminary objection should thus also be dismissed. 73. As regards the Government’s objection concerning compliance with the six-month time-limit (see paragraphs 69 above), the Court notes that the applicants lodged their applications with the Court within six months of the date on which they had received the decisions of the Constitutional Court dismissing their constitutional complaints (see paragraphs 16 and 24 above). The Constitutional Court decisions relate to the proceedings that the applicants had initially instituted before the Administrative Court with a view to seeking adjustments of the polling stations with respect to the upcoming 2015 Referendum, as well as any future elections and referendums (see paragraphs 11 and 19 above). Even though these proceedings proved to be incapable of offering any redress, in view of the Supreme Court’s position (see paragraphs 14 and 22 above), it has not been demonstrated by the Government that they could be regarded as constituting inappropriate or misconceived avenues which could be considered as bound to fail from the outset and hence should not be taken into account for the calculation of the six-month period (see, for example, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 138, 19 December 2017; also contrast Musayeva and Others v. Russia (dec.), no. 74239/01, 1 June 2006, and Rezgui v. France (dec.), no. 49859/99, ECHR 2000-XI). In this respect, the Court notes that the Constitutional Court did not dismiss the applicants’ constitutional complaints against the Supreme Court and Administrative Court decisions, in which they had complained about essentially the same issues as those being examined by the Court (see paragraphs 15 and 23 above), on the grounds that the available remedies had not been properly exhausted (see paragraphs 15 and 23 above). It thus rejects this objection of the Government. 74. With regard to the Government’s objections concerning the exhaustion of certain domestic remedies (see paragraphs 68 above) the Court notes that they are closely linked and should thus be joined to the examination of the merits of the complaint under Article 13, taken together with other cited provisions. Characterisation of the complaints and order of examination 75. The Court notes that the applicants complained under Article 3 of Protocol No. 1 and under Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1. They also complained under Article 1 of Protocol No. 12. Furthermore, they cited Article 13 of the Convention. Being the master of characterisation to be given in law to the facts of the case (see Radomilja and others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), the Court considers that in so far as they relate to the 2015 Referendum the applicants’ complaints should be examined from the standpoint of Article 1 of Protocol No. 12 – both alone and in conjunction with Article 13 of the Convention. In respect of the 2019 EP Elections, the complaints should be examined under Article 14 of the Convention, in conjunction with Article 3 of Protocol No. 1, and from the standpoint of these two provisions taken together with Article 13 of the Convention. 76. The Court furthermore notes that when considering whether there has been a violation of the right to an effective remedy in respect of a violation of a substantive right guaranteed by the Convention, the Court’s normal practice is to consider first whether there has been a violation of the substantive right relied upon and then to consider whether there has been a violation of Article 13. However, having considered the applicants’ submissions and in view of the Court’s decision to join the Government’s objection regarding the exhaustion of domestic remedies to the merits of the complaint under Article 13 (see paragraph 74 above), the Court considers that it should examine first whether there has been a violation of Article 13, read in conjunction with the other provisions relied on by the applicants. ALLEGED VIOLATION OF ARTICLE 13 of the Convention, taken together with Article 1 of protocol no. 12 to the convention (as regards the 2015 referendum) and with Article 14 of THE CONVENTION, in conjuction with article 3 of Protocol no. 1 to the convention (as regards the 2019 EP elections) 77. The applicants complained of the lack of effective judicial means by which they could have requested an accessible polling station in advance. They furthermore complained of the lack of any effective remedy by which to claim compensation for being discriminated against in exercising their right to vote in elections or referendums. The relevant provisions (see paragraph 75 above) read as follows: Article 13 (right to an effective remedy) “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by people acting in an official capacity.” Article 14 (prohibition of discrimination) “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 3 of Protocol No. 1 (right to free elections) “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” Article 1 of Protocol No. 12 (General prohibition of discrimination) “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” Admissibility 78. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI). 79. Since Article 13 has no independent existence but merely complements the other substantive clauses of the Convention and its Protocols (see Zavoloka v. Latvia, no. 58447/00, § 35, 7 July 2009, and DEBÚT Zrt. and Others v. Hungary (dec.), no. 24851/10, 20 November 2012), the Court will first proceed to ascertain whether the other provisions cited together with Article 13 are applicable in the present case. 80. The Court notes at the outset that both applicants complained that they had been hindered in the enjoyment of their rights because of their disability, which falls under “any other status” as a prohibited grounds for discrimination (see Çam v. Turkey, no. 51500/08, § 55, 23 February 2016, and Guberina v. Croatia, no. 23682/13, § 79, 22 March 2016). It furthermore notes that as regards the 2019 EP Elections it has not been disputed that Article 3 of Protocol No. 1 applied, and the Court sees no reason to hold otherwise (see, for instance, Matthews v. the United Kingdom [GC], no. 24833/94, §§ 45-54, ECHR 1999 ‑ I). 81. As regards the 2015 Referendum the Court notes that while Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 extends the scope of protection to “any right set forth by law”. It thus introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009). It has not been disputed in the present case that the applicants had a right to vote in referendums (see also paragraph 37 above), including the one held in 2015. Having regard to the fact that the disability falls within “any other status” as a prohibited ground of discrimination (see paragraph 80 above), Article 1 of Protocol No. 12 is applicable to the complaints concerning the applicants’ participation in the 2015 Referendum. 82. The Court also finds that the applicants’ complaints under the substantive provisions are “arguable” for the purposes of Article 13. It therefore concludes that, not being inadmissible on any other grounds listed in Article 35 of the Convention, this part of the applications must be declared admissible. MeritsThe submissions by the parties The submissions by the parties The submissions by the parties 83. The applicants submitted that they, together with other voters with disabilities, had attempted to avail themselves of all the available (election and post-election) remedies repeatedly and over a long period of time but had always been unsuccessful. They pointed out that appeals under the electoral laws (see paragraphs 46-47 above) could not be effective as one person’s vote could not affect the overall result. They had not availed themselves of any of the available domestic remedies following the 2019 EP Elections as it had by then been clear that none of them would be effective. The applicants furthermore argued that they should have had at their disposal a remedy allowing them to request an accessible polling station ahead of the elections and the referendums. The applicants criticised the Constitutional Court’s view that complaints relating to the voting process should be rejected once the elections in question were over (see paragraph 45 above). They also argued that the Supreme Court’s position in respect of their cases constituted a change in the case-law that they could not have foreseen. With respect to the Protection against Discrimination Act, the applicants argued that that Act did not constitute an effective way to ensure that polling stations were accessible. 84. The Government acknowledged that the applicants could not have claimed compensation with respect to the alleged violations that had occurred during the 2015 Referendum because neither the Administrative Disputes Act nor the Obligations Code provided for the possibility of obtaining monetary redress. The applicants could have obtained a finding of a violation, which, in the Government’s view, would have sufficed. They referred to cases in which the Court had ruled that the finding of a violation had been sufficient, such as Kulinski and Sabev v. Bulgaria, no. 63849/09, 21 July 2016, and Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, 4 July 2013. After the 2019 EP Elections, the applicants could have brought an action under section 4 of the Administrative Disputes Act and sought a remedy under section 39 of the Protection against Discrimination Act, which would have allowed them to seek monetary compensation for the alleged discrimination. 85. The Government also submitted that there were no preventive remedies as regards the accessibility of polling stations because the domestic authorities were in any event bound by law to make polling stations accessible to people with disabilities. 86. The office of the Advocate for the Principle of Equality (see paragraph 52 above), acting as a third party in the proceedings, argued that as regards the claim under section 39 of the Protection against Discrimination Act (see paragraph 52 above), no case-law had been formulated thus far on the basis of that provision and that in point of fact the first and only legal action, which had been brought by the Advocate in 2019, was still pending before the domestic court. The third party considered this remedy to present a degree of uncertainty for the plaintiffs. The Court’s assessment 87. As the Court has stated on many occasions, the Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under Article 13 of the Convention. The scope of their obligations under Article 13 also varies, depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001 ‑ V (extracts)). (a) The remedies with respect to the 2015 Referendum 88. According to the Supreme Court (see paragraphs 14 and 22 above) and the Government (see paragraph 68 above), the applicants had at their disposal a remedy under the Referendums Act. However, it is clear from the relevant domestic law and practice that this remedy could have had an effect only if the grounds for complaint had potentially affected the 2015 Referendum’s outcome (see paragraphs 46-47 above). It was not meant to be and was not capable of addressing the kind of individual complaints raised by the applicants. 89. The Government furthermore argued that the applicants had had at their disposal an effective remedy in the form of bringing an action under section 4 of the Administrative Disputes Act (see paragraphs 48-50 above), but had failed to use it properly – that is to say after the 2015 Referendum (see paragraphs 68, 69 and 84 above). The Court reiterates in this regard that remedies must be effective in the sense that they could have prevented the alleged violations occurring or continuing or could have afforded the applicants appropriate redress for any violation that had already occurred (see, for instance, Kudła, cited above, § 158, and Jaremowicz v. Poland, no. 24023/03, § 70, 5 January 2010 ). The applicants clearly intended to use the remedies with the aim of ensuring the accessibility of their local polling station in advance. The Government, however, submitted that there were no preventive remedies as regards the accessibility of polling stations (see paragraph 85 above) and that the applicants should instead have sought the finding of a violation of their human rights under section 4 of the Administrative Disputes Act (see paragraph 68 above); this seems to have been suggested also by the Supreme Court (see paragraph 14 above). It has been acknowledged by the Government that neither the action under section 4 of the Administrative Disputes Act nor any other remedy would have enabled the applicants to obtain any form of compensation for the violation which had allegedly occurred (see paragraphs 48 and 84 above). 90. The Court takes note that an action under section 4 of the Administrative Disputes Act was, pursuant to the Supreme Court’s view (see paragraphs 14 and 22 above), not intended to prevent a possible violation of the applicants’ rights. Taking into account the aforementioned absence of any legal remedy with a preventive effect, the Court further considers that an action of which the sole purpose was to obtain a finding of a violation without the possibility to seek redress would constitute an inadequate remedy. The fact that the Court in some cases concerning the right to vote has awarded no monetary compensation (see paragraph 84 above) cannot alter this finding. The Court would emphasise that in the present case it is not confronted with a domestic decision by which no compensation was awarded in view of the circumstances of the case, but with a domestic court that lacks any power to award appropriate redress. 91. Therefore, as regards the 2015 Referendum, the applicants did not have at their disposal an effective remedy; there has thus been a violation of Article 13, taken together with Article 1 of Protocol No. 12 to the Convention. (b) The remedies with respect to the 2019 EP Elections 92. As regards an action brought under section 4 of the Administrative Disputes Act, the Court has already found that it would not have been capable of providing appropriate redress, as required by Article 13 of the Convention (see paragraphs 89 and 90 above). As to a remedy that might be sought under the Elections Act, it finds that, like the remedy that might be sought under the Referendums Act (see paragraph 88 above), such a remedy was neither meant to address nor was capable of addressing the complaints raised by the applicants – that is to say complaints that did not appear to be capable of affecting the outcome of the elections (see paragraphs 46-47 above). With respect to the remaining possible remedies, the Court finds that it is necessary to distinguish between the two applicants. (i) The first applicant 93. The first applicant did not vote in the 2019 EP Elections because he could have done so only by using a voting machine. Such machines were, pursuant to the 2017 Amendment, no longer available (see paragraphs 38 and 42 above). The issue at stake was therefore not one of any reasonable accommodation that could have been provided at the polling station but one of an instance of alleged discrimination under the relevant legislation. The Court notes that this issue was considered during the proceedings for the review of constitutionality before the Constitutional Court (see paragraph 37 above), in which the first applicant took part (see paragraphs 16 and 31 above). The Constitutional Court, having regard to the arguments of those involved, as well as the relevant international material, thoroughly examined whether the removal of the voting machines had been in compliance with the fundamental rights of voters with disabilities (see paragraphs 33-36 above). It is true that it did not reach a conclusion favourable to the first applicant, but this fact alone does not mean that the remedy was ineffective (see, mutatis mutandis, Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, § 50, Series A no. 20 ). There has therefore been no violation of Article 13 of the Convention with respect to the first applicant’s complaint relating to the 2019 EP Elections. (ii) The second applicant 94. The second applicant voted but complained that he had been unable to do so on an equal basis with others owing to practical obstacles that he had encountered at his polling station and the failure to reasonably accommodate his needs. The Court observes that it was open to the second applicant to express any concerns that he might have had regarding the accommodation of his needs to the relevant electoral bodies (see paragraphs 13 and 20 above), which ahead of the 2015 Referendum had constructively responded to his requests (see paragraph 121 below). Had he considered that he had suffered discrimination in exercising his right to vote he could, under section 39 of the Protection Against Discrimination Act (which came into force in 2016), have lodged a claim for compensation. Although no case ‑ law may be so far established in this regard (see paragraph 86 above), the provisions of section 39 have been specifically designed to address discrimination and do not raise any unambiguity that would – prima facie – call the effectiveness of this remedy into question (see, for instance, Charzyński v. Poland (dec.), no. 15212/03, § 41, 1 March 2005 ). 95. It is true that the second applicant could not have sought – by way of an action brought under section 4 of the Administrative Act or by way of the remedies provided under the Referendums Act – that particular adjustments be made at his local polling station (see paragraphs 88-90 and 92 above). However, under Article 13 of the Convention, the national authorities enjoy a certain discretion as to the manner in which they conform to their Convention obligations (see paragraph 87 above), and the Court finds that, given the circumstances of the case, a remedy capable of affording appropriate redress in the form of compensation would satisfy the criteria of Article 13. 96. Accordingly, the second applicant had at his disposal an effective remedy, so there has been no violation of Article 13 on this account. alleged violation of Article 1 of protocol no. 12 to the convention (as regards the 2015 referendum) and the ALLEGED VIOLATION OF ARTICLE 14 of the convention, in conjuction with article 3 of Protocol no. 1 to THE CONVENTION (as regards the 2019 EP elections) 97. The applicants, whose mobility was impaired owing to disability and who used wheelchairs, complained of a violation of Article 1 of Protocol No. 12 with respect to their alleged lack of access to the voting procedure during the 2015 Referendum. They furthermore complained of a violation of Article 14, taken together with Article 3 of Protocol No. 1, with respect to the 2019 EP Elections. Those provisions have already been cited above (see paragraph 77 above). Admissibility 98. The Court has found that the second applicant had an effective remedy at his disposal as regards the 2019 EP Elections. It thus upholds the Government’s preliminary objection concerning the non-exhaustion of domestic remedies in this respect (see paragraph 96 above). This part of the second applicant’s application is therefore inadmissible under Article 35 § 1 and 4 of the Convention. 99. As regards the remaining complaints, the Court notes that it has found that the applicants did not have at their disposal an effective remedy with respect to their complaint concerning the 2015 Referendum (see paragraph 91 above). The Government’s preliminary objection concerning the non-exhaustion of domestic remedies in this respect should therefore be dismissed. As regards the first applicant’s complaint in relation to the 2019 EP Election, the Government argued that he should have used the compensatory remedy under the Prohibition of Discrimination Act (see paragraphs 52 and 68 above). The Court recalls that, where several remedies are available, the applicant is not required to pursue more than one and it is normally that individual’s choice as to which (see, mutatis mutandis, Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009 ). It notes that the first applicant had availed himself of the proceedings for the review of constitutionality before the Constitutional Court (see paragraph 93 above). The Government did not provide any relevant arguments to the effect that he would have been required to exhaust an additional legal avenue in the form of a compensatory remedy (see paragraph 68 above). This objection of the Government should therefore likewise be dismissed. 100. The Court furthermore notes that the applicants’ complaints concerning the 2015 Referendum and the first applicant’s complaint concerning the 2019 EP Elections are neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsThe submissions by the parties The submissions by the parties The submissions by the parties (a) The applicants 101. The applicants argued that “accessible” polling stations meant not only stations that had an accessible entrance but also an accessible path to the voting room, access to the voting booth in which they could vote privately, an accessible ballot paper and an accessible ballot box. They had requested in the proceedings initiated before the 2015 Referendum that their voting booths and tables be wheelchair-accessible, but that request had been ignored. The second applicant disputed the Government’s assertion that his local polling station had been accessible and pointed out that the visit made by the district election commission in 2015 could not have ensured the accessibility of the interior of his polling station, as it had taken place three days before the referendum, and the voting equipment had not been there at the time of the visit. 102. The first applicant submitted that since 2018 he would need to use electronic equipment designated specifically for people with disabilities in order to vote by secret ballot and without discrimination. Such equipment had been available in Slovenia for many years and enabled blind people or persons who could not use their hands to vote independently. Its use had been cancelled altogether by the 2017 Amendment. The applicants hoped that the Constitutional Court would overturn the legislature’s decision in that regard, because such equipment had been – in their view – declared necessary by the CRPD Committee (see paragraph 57 above). 103. The applicants seemed to argue that the only way to secure their right to vote by secret ballot and without discrimination was by means of a fully accessible polling station, at which assistive technology was also available. All other – alternative – solutions were unable to fully achieve this objective. (b) The Government 104. As regards the 2015 Referendum the Government argued that both applicants had been provided with an accessible polling station. The applicants had also been allowed to benefit from the assistance of a person of their own choice during the voting process. The Government also explained that the records of the election committee were not available as they had been destroyed during floods in 2018. They pointed out that only after the Government had been given notice of the application had the first applicant explained that he had actually voted during the 2015 Referendum. As regards his description of the events, the Government pointed out that the first applicant had himself acknowledged that he had been accompanied by several people. That could explain the alleged presence of many people inside the polling station during the time that he had been casting his vote. As regards the second applicant, the Government stressed that he had raised only the issue of the angle of inclination of the ramp. 105. As regards the 2019 EP Elections, the Government argued that the first applicant could have availed himself of the assistance of another person in order to mark and deposit the ballot paper, could have voted by post, or could have voted at home, in the presence of the election committee. 106. As regards the third parties’ submissions, the Government pointed out that the Advocate himself acknowledged in his submissions that he had not examined any case concerning access to polling stations and had so far made no recommendations in this regard. Relying on the information supplied by Equinet (see paragraph 109 below), the Government pointed out that that fact, together with the information contained in the EESC’s information report (see paragraphs 60-62 above), indicated that the applicants in the present case had in fact been in a better position than voters with disabilities in many other European countries. With respect to the submissions of the HPOD and the CDLP (see paragraph 107 below) the Government pointed out that the applicants’ local polling stations had been accessible and that the election commissions had responded to the applicants’ requests during the 2015 Referendum. (c) Third parties (i) The Harvard Law School Project on Disability (HPOD) and the Centre for Disability Law and Policy (the CDLP ) 107. The HPOD and the CDLP invited the Court to hold that accessibility, including assistive technology and voting assistance, was a necessary element of the right to vote and the right to be free from discrimination. They relied on the CRPD and the CRPD Committee’s comments and invited the Court to differentiate between the denial of reasonable “accommodation” and the denial of accessibility. They outlined the following obligations, which in their opinion arose from the CRPD: (i) the unconditional obligation to ensure accessible voting facilities and procedures to people with mobility impairment without such individuals having to request such facilities and procedures in advance, and irrespective of the costs; (ii) the obligation to ensure that assistance provided to voters with disabilities did not jeopardise the secrecy of the voting procedure; (iii) the additional positive obligation to provide reasonable accommodation to individual voters in relation to their specific needs and circumstances; (iv) the obligation to respect a voter’s choice of voting assistant; (v) the obligation to actually prove (not merely allege) that a proposed accommodation was disproportionately burdensome. (ii) Advocate of the Principle of Equality 108. The office of the Advocate for the Principle of Equality (see paragraph 52 above) referred to the CRPD’s accessibility standards and invited the Court to consider whether the concept of “reasonable accommodation” was pertinent to the present cases. It explained that in Slovenia the number of polling stations was traditionally very high and that citizens could in practice cast their votes very close to their homes. For each election or referendum, polling stations were set up on an ad hoc basis, although in practice, often the same premises (such as schools, inns or fire brigade stations) were used. It furthermore explained that although the accessibility of polling stations had improved owing to changes in the relevant legislation, it remained unclear to election commissions what “accessibility” meant in technical terms. As regards voting from home, it pointed to the lack of any specific regulation of this voting method. (iii) The European Network of Equality Bodies (Equinet) 109. Equinet submitted that the trends had been emerging from the international and regional instruments in favour of the right of people with disabilities to have access to fully and autonomously accessible polling stations. It noted that in practice access for people with disabilities to the electoral process remained inadequate, resulting in a significantly low participation in the electoral process of people with disabilities. Equinet stated that it had gathered its information from the national equality bodies of nineteen Council of Europe member States. In its opinion, the data showed a general move towards a formal recognition of the right of people with disabilities to vote but also an overall lack of supervision as to how measures aimed at ensuring accessibility were executed in practice. The Court’s assessment (a) Relevant principles 110. The relevant principles concerning the right to vote have been set out in Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 56-62, ECHR 2005 ‑ IX. 111. As regards Article 14 of the Convention, the Court reiterates that “discrimination” means treating differently, without an objective and reasonable justification, people in relevantly similar situations, and that a difference in treatment is devoid of any “objective and reasonable justification” where it does not pursue a “legitimate aim” or there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Enver Şahin v. Turkey, no. 23065/12, § 54, 30 January 2018 ). However, the Court considers that this is not the only facet of the prohibition of discrimination under Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently people whose situations are significantly different (see J.D. and A. v. the United Kingdom, nos. 32949/17 and 34614/17, § 84, 24 October 2019 with further references, notably Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV). In this context, relevance is measured in relation to what is at stake, whereas a certain threshold is required in order for the Court to find that the difference in circumstances is significant. For this threshold to be reached, a measure must produce a particularly prejudicial impact on certain persons as a result of a protected ground, attaching to their situation and in light of the ground of discrimination invoked (see Ádám and Others v. Romania, nos. 81114/17 and 5 others, § 87, 13 October 2020, and Napotnik v. Romania, no. 33139/13, § 73, 20 October 2020). As the effective enjoyment of many of the Convention rights by people with disabilities may require the adoption of various positive measures by the relevant State authorities (see Mółka v. Poland (dec.), no. 56550/00, ECHR 2006 ‑ IV ), the Court considers that the threshold of significance referred to above must likewise be attained when an applicant alleges existence of discrimination due to lack of positive measures by the respondent State. 112. The Court also notes that the Convention should, as far as possible, be interpreted in harmony with other rules of international law, of which it forms a part (see Enver Şahin, cited above, § 53). Therefore, the provisions regarding the rights of people with disabilities set out in the CRPD should, along with other relevant material (see paragraphs 54 to 62 above), be taken into consideration. The Court observes in this connection that in its General Comment No. 2 the CRPD Committee noted that the denial of access of persons with disabilities to, inter alia, facilities and services open to the public should be viewed within the context of discrimination (see paragraph 55 above). 113. It is furthermore reiterated that the States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013). However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Enver Şahin, cited above, § 55, and Glor v. Switzerland, no. 13444/04, § 75, ECHR 2009). 114. In previous cases concerning the rights of people with disabilities, the Court, referring to the CRPD, has found that Article 14 of the Convention has to be read in the light of the requirements of those texts regarding reasonable accommodation – understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” – which people with disabilities are entitled to expect in order to ensure “the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Article 2 of the CRPD). Such reasonable accommodation helps to correct factual inequalities which are unjustified and which therefore amount to discrimination (see Çam, cited above, § 65 ). The Court finds that these considerations apply equally to the participation of people with disabilities in political life. It notes in this regard that Article 29 of the CRPD explicitly requires the States Parties to guarantee to people with disabilities the opportunity to enjoy political rights on an equal basis with others and to undertake to ensure, among other things, accessible voting procedures (see paragraph 54 above). 115. Lastly, the Court notes that, notwithstanding the difference in scope between Article 14 and Article 1 of Protocol No. 12, the meaning of the term “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see Pilav v. Bosnia and Herzegovina, no. 41939/07, § 40, 9 June 2016, and Sejdić and Finci, cited above, §§ 55 ‑ 56). Therefore, in principle, the same standards developed by the Court in its case ‑ law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12 (see Napotnik, cited above, § 70, and Ádám and Others, cited above, § 83 ). (b) Assessment of the present case 116. In the light of the above-mentioned principles the Court is called on to assess whether the Slovenian authorities complied with their obligations under Article 1 of Protocol No. 12 (as regards the 2015 Referendum) and Article 14 read in conjunction with Article 3 of Protocol No. 1 (as regards the possibility for the first applicant to vote in 2019 EP Elections). 117. The Court notes that Article 3 of Protocol No. 1 stipulates that there must be free expression of opinion in the choice of the legislature and that secrecy must be observed in respect of the voting procedure. Under the relevant domestic legislation these guarantees also apply to voting in public referendums (see paragraph 39 above). The Court furthermore notes that it has not been argued that the applicable domestic legislation contained provisions divesting people with mobility impairments of the aforementioned rights or restricting their enjoyment of those rights in any way. The question is therefore not one of direct discrimination by way of unjustified differentiation but rather of the compliance of the national authorities with their positive obligation to take appropriate measures to enable the applicants, whose mobility was impaired due to disability, to exercise their right to vote on an equal basis with others. (i) The 2015 Referendum 118. The Court finds it established that on the day of the 2015 Referendum the entrances to the applicants’ respective polling stations were equipped with ramps, which the applicants used in order to enter. However, the applicants argued that the appropriate adaptations had not been made inside the polling stations, resulting in them not being able to vote in secrecy and on an equal basis with others. 119. The Court firstly observes that a general and complete adaptation of polling stations in order to fully accommodate wheelchair users would no doubt facilitate their participation in the voting process. However, it reiterates that the States enjoy a margin of appreciation in assessing the needs of people with disabilities in respect of elections and the means of providing them with adequate access to polling stations within the context of the allocation of limited State resources (see Mółka, cited above); that margin of appreciation no doubt applies also with respect to referendums. The national authorities are in a better position to carry out such an assessment than an international court (ibid.). The Court furthermore observes that the applicants were able to vote at the polling stations in proximity of their residence, in accordance with their wishes (see paragraphs 10 and 17 above), as opposed to having to go to specially designated polling stations. While adaptations to the voting facilities (such as tables, voting booth and ballot box) were not made in advance, assistance could be provided to the applicants on the spot by means of a reasonable accommodation of their needs (see, for instance, the CRPD Committee’s General Comment No. 2, cited in paragraph 55 above, and paragraphs 13 and 20 above). 120. In this regard the Court finds, on the basis of the parties’ submissions, that during the 2015 Referendum both applicants were able to mark their ballot paper by themselves. The first applicant alleged that he had had to cast his vote in the middle of the room, with several people around him, but failed to explain how this had impacted the secrecy of the voting procedure and whether he had made any request or complaint in this regard to electoral officers. In the proceedings before the Court he made this allegation only after the Government had been given notice of the application, and supported it with the photos that had been published on Facebook by the first applicant’s nephew, Mr Jurij Toplak, on the day of the referendum (see paragraph 26 above), with accompanying text that read: “My uncle, Franc Toplak, voted in an accessible polling station today. One polling station adjusted, 3,000 to go”. Those photos had clearly been posted in order to show that the first applicant had been able to vote at an accessible polling station (see paragraph 25 above). The second applicant submitted that he had needed the help of a passer-by in order to use the ramp at the entrance to his polling station (see paragraph 26 above). As regards his actual voting, he provided no specific information during the proceedings before the Court. In the domestic proceedings he indicated that he had been able to mark and deposit his ballot paper. His grievance related only to the inclination of the ramp (see paragraph 21 above). 121. The Court understands that since voting in public referendums is organised ad hoc in buildings that otherwise serve other purposes it might be particularly difficult to ensure full accessibility in respect of the voting process for people with different types of disability in advance – especially if the State aims to provide a high number of polling stations (as seems to be the case in Slovenia – see paragraph 108 above). Since the improvement of accessibility in the built environment may take time (see, for instance, the CRPD Committee’s General Comment No. 6, at paragraph 56 above), it is essential that in the meantime the domestic authorities react with the requisite diligence to ensure that people with disabilities can vote freely and by secret ballot. In the present case, the National Commission responded promptly and constructively to the applicants’ request that their respective polling stations be rendered accessible (see paragraphs 10, 12, 17 and 18 above). At the request of the first applicant a ramp was installed at the polling station for his electoral area. At the request of the second applicant, a visit to the building (school) that would serve as the polling station for his electoral area was arranged a few days before the day of the 2015 Referendum in order to ensure that he would be able to enter the building and the polling room (ibid.). Even if the applicants did encounter certain problems when participating in the 2015 Referendum, those problems do not appear to have produced a particularly prejudicial impact on them and been such as to have reached the threshold of discrimination (see Napotnik, cited above, § 73, and Ádám and Others, cited above, § 87) or to indicate indifference to their needs on the part of the respondent State (compare, mutatis mutandis, the above-cited cases of Çam, § 68, and Guberina, § 86). There has therefore been no violation of Article 1 of Protocol No. 12 as regards the 2015 Referendum with respect to both applicants. (ii) The 2019 EP Elections 122. The first applicant did not vote in the 2019 EP Elections, allegedly because he was unable to hold a pen and thus would not be able to mark his ballot paper by himself. He argued that the respondent State should have made it possible for him to vote using a voting machine (see paragraph 102 above). The Court notes that the use of voting machines was no longer possible following the 2017 Amendment; thus, they could not be provided to anyone during the 2019 EP Elections (see paragraph 42 above). The Court must now assess whether, having regard to other options available to the first applicant, the respondent State complied with its positive obligations to secure his rights under Article 14 of the Convention, read in conjunction with Article 3 of Protocol No. 1 to the Convention. 123. The Court notes that under the Elections Act, the first applicant could have voted either by going physically to his local polling station (which, pursuant to the 2017 Amendment, had to be wheelchair accessible) or by post, and possibly also at his home (see paragraphs 40 and 42 above). However, in view of his inability to mark the ballot paper by himself, he would – if he had chosen any of these options – have had to be assisted by another person, who would have marked his ballot paper for him and taken care of other practicalities, such as depositing the ballot paper in the ballot box or dispatching it by post. The Elections Act allowed for such assistance to be provided to the first applicant, who was free to choose the person to assist him. 124. The Court further notes that the first applicant did not allege that he had been unable to request the assistance of another person. It observes in this regard that the first applicant had a family and was assisted by several people during the 2015 Referendum (see paragraph 25 above). That said, it is true that the provision of this kind of assistance most likely meant that the first applicant, who owing to his medical condition was unable to mark the ballot paper by himself, would have had to disclose his electoral choice to the person assisting him. 125. The Court observes in this respect that the Constitutional Court, which was no doubt best placed to interpret the relevant domestic law, explained that the voting assistant had been obliged to respect the secrecy of the voting procedure under, inter alia, the Penal Code (see paragraph 35 above). It furthermore observes that this kind of assistance with voting, provided that the voter’s free will is respected, is in compliance with the international standards in the field, such as Article 29 of the CRPD and the Venice Commission’s Revised Interpretative Declaration (see paragraphs 54, 58, 59 and 61 above). 126. As regards technology-assisted voting, the Court notes that it is also mentioned in the international instruments as one means of ensuring the right of people with disabilities to vote (see, for instance, paragraphs 54 and 58 above). The Court understands that voting machines might afford a higher level of autonomy in voting for some people with disabilities. When assessing whether in view of the foregoing the respondent State should have made voting machines available to the first applicant, the Court must have regard to the following factors. 127. Firstly, the importance of the inclusion of people with disabilities in political life (which requires accessible voting procedures) has been clearly recognised in international instruments (see paragraphs 54, 57, 58, 59 and 61 above). However, the use of assistive technologies has been mentioned as one means of supporting people with disabilities in exercising their voting rights and not as a necessary requirement that would need to be immediately implemented (ibid.; see also paragraphs 55-56 above). The CRPD Committee’s decision of 16 February 2018 in respect of case no. 19/2014 does not seem to lead to a different conclusion (see paragraph 57 above). 128. Secondly, the Court notes that the use of assistive technologies no doubt requires significant financial investment (especially if it is to be made available on a larger scale), that the operation of voting machines poses potential problems for the secrecy of the voting procedure (see paragraphs 62 and 63 above), and that in view of the information contained in the Constitutional Court’s decision (see paragraph 36 above), voting machines do not appear to be widely available in the member States. Indeed, there is no indication in the present case of a consensus having been reached among the member States as to the use of voting machines as a requirement for the effective exercise of the voting rights by people with disabilities (see paragraphs 35, 60 and 109 above). 129. Therefore, and because assistance to people with disabilities may take a variety of forms, the decision as to whether voting machines should be used for that purpose is to be made primarily by the national authorities. They, by reason of their direct and continuous contact with the vital forces of their countries, are in principle better placed than an international court to evaluate local needs and conditions in this regard (see Çam, cited above, § 66). It is, however, important that those authorities take great care with the choices they make in this sphere, in view of the impact of those choices on people with disabilities, whose particular vulnerability cannot be ignored (see Enver Şahin, cited above, § 61). 130. Bearing this in mind, the Court notes that in the present case, the Constitutional Court – during proceedings in which both applicants participated – dealt with the question of whether the lack of availability of voting machines resulting from the 2017 Amendment was in compliance with the Constitution and with the international obligations of Slovenia. The Constitutional Court took account of, inter alia, the fact that a very small number of people with disabilities had used voting machines in the past, that such machines could not assist people with all types of disabilities and that their provision was linked to high costs (see paragraph 35 above). The reasons provided by the Constitutional Court appear persuasive and based on a careful assessment of past experience in using voting machines and on the compliance of the new regulation with international standards (see paragraphs 34-36 above; also contrast, mutatis mutandis, Guberina, cited above, § 92). 131. Therefore, and having regard to the other options available to the first applicant, especially the possibility of assistance by a person of his own choice (see paragraphs 123 to 125 above), the respondent State could not be said to have failed to strike a fair balance between the protection of the interests of the community and respect for the first applicant’s rights and freedoms, as safeguarded by the Convention. 132. There has accordingly been no violation of Article 14, read in conjunction with Article 3 of Protocol No. 1, as regards the first applicant. APPLICATION OF ARTICLE 41 OF THE CONVENTION 133. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 134. The applicants claimed 12,000 euros (EUR) each in respect of non ‑ pecuniary damage. 135. The Government argued that the claim was excessive. 136. The Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the second applicant EUR 3,200 and the first applicant’s daughters each EUR 1,600 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. Costs and expenses 137. The applicants also claimed EUR 18,000 each for the costs and expenses incurred before the domestic courts and EUR 9,000 each for those incurred before the Court. 138. The Government pointed out that the applicants had not submitted any proof of expenses concerning the domestic proceedings, nor had they specified in respect of which proceedings at domestic level they made their claim. The lawyer would have been entitled to legal fees based on the official lawyers’ tariff or an agreement. However, the applicants had not submitted any such agreement. As regards the proceedings before the Court, the Government relied on the domestic lawyers’ tariff and argued that each of the applicants was eligible to receive only EUR 1,500. 139. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the second applicant the sum of EUR 1,500 and the first applicant’s daughters jointly the sum of EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to them. Default interest 140. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 13 (right to an effective remedy) of the Convention taken together with Article 1 (general prohibition of discrimination) of Protocol No. 12 to the Convention as regards the participation at the 2015 Referendum with respect to both applicants, that there had been no violation of Article 13 of the Convention taken together with Article 14 (prohibition of discrimination) of the Convention and Article 3 (right to free elections) of Protocol No. 1 as regards the 2019 European Parliament elections with respect to both applicants, that there had been no violation of Article 1 of Protocol No. 12 as regards the 2015 Referendum with respect to both applicants, and that there had been no violation of Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1 as regards the first applicant’s lack of participation in the 2019 European Parliament elections. |
674 | Public persons or political figures | II. RELEVANT DOMESTIC LAW 18. The relevant provisions of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands ) reads as follows: Article 71 “Everyone shall enjoy freedom from interference with privacy, home and family life. ... Notwithstanding the provision of the first paragraph above, freedom from interference with privacy, home and family life may be otherwise limited by statutory provisions if this is urgently necessary for the protection of the rights of others.” 19. The Penal Code No. 19/1940 ( Almenn hegningarlög ), Chapter XXV, entitled “Defamation of character and violations of privacy”, sets out the following relevant provisions: Article 194 “Any person who has sexual intercourse or other sexual relations with a person by means of using violence, threats or other unlawful coercion shall be guilty of rape and shall be imprisoned for a minimum of 1 year and a maximum of 16 years. ‘ Violence ’ here refers to the deprivation of independence by means of confinement, drugs or other comparable means.” Article 235 “If a person alleges against another person anything that might be harmful to his or her honour or spreads such allegations, he shall be subject to fines or to imprisonment for up to one year.” Article 236 “Anyone who, against his or her better knowledge, makes or disseminates a defamatory insinuation shall be liable to up to two years ’ imprisonment. Where such an insinuation is published or disseminated publicly, even though the person publishing or disseminating it has no reason to believe it to be correct, the sentence shall be a fine or up to two years ’ imprisonment.” Article 241 “In a defamation action, defamatory remarks may be declared null and void at the demand of the injured party. A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person, on the latter ’ s demand, a reasonable amount to cover the cost of the publication of a judgment, its main contents or reasoning, as circumstances may warrant in one or more public newspapers or publications.” Article 242 “ The offences referred to in the present Chapter shall be subject to indictment as follows: ... 3. Lawsuits on account of other offences may be brought by the injured party alone. ” 20. Section 26(1) of the Tort Liability Act No. 50/1993 ( Skaðabótalög ) reads: “A person who a. deliberately or through gross negligence causes physical injury or b. is responsible for an unlawful injury against the freedom, peace, honour or person of another party may be ordered to pay non-pecuniary damages to the injured party.” 21. Section 145 of the Criminal Procedure Act No. 88/2008 ( Lög um meðferð sakamála ) reads: “When the prosecutor has received all the evidence in the case and made sure that the investigation has been completed, he/she examines whether or not the defendant should be indicted or not. If the prosecutor feels that what has already been gathered is not sufficient or likely to lead to a conviction, he/she takes no further action, but otherwise he/she initiates a criminal case against the defendant, according to Article 152, cf. however Article 146.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 22. The applicant alleged that the Supreme Court judgment of 20 November 2014 entailed a violation of his right to respect for his private life as provided in Article 8 of the Convention. The relevant parts read as follows: “1. Everyone has the right to respect for his private and family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 23. The Government contested that argument. A. Admissibility 24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 25. The applicant maintained that when X published the altered picture with the caption “ Fuck you rapist bastard” he had been accusing the applicant of raping a specific person, even though X had known that the case against him had been dismissed by the prosecutor. In the applicant´s opinion this was a factual statement about him being a rapist which could have been proven. 26. The applicant submitted that it had been established that X had published the picture and the statement, in English, and made them accessible to over 100 million Instagram subscribers. Consequently, the picture had been published in the Icelandic media. The picture had given the impression that the person in the picture (the applicant) was a rapist. 27. The applicant further argued that the conclusion of the Supreme Court had entailed that the applicant could be called a rapist without having been charged with or convicted of such a crime, and without being able to defend himself. This was a violation of his rights under Article 8 of the Convention. (b) The Government 28. Firstly, the Government pointed out that the facts of the current case differed from cases concerning the media publishing information about individuals and therefore the Court ’ s principles in cases concerning the media could not be applied in the same way in the current case. Thus, for example, the criteria of the method of obtaining the information and its veracity did not apply in the present case. The information had been disseminated by one individual expressing a personal value judgment about the applicant and it had not been intended for the general public. 29. In the Government ’ s opinion, the domestic courts applied standards that were in conformity with the principles embodied in Article 8 of the Convention as interpreted in the Court ’ s case - law. The balancing test - between the competing rights protected under Articles 8 and 10 of the Convention - was based on principles developed in the Court ’ s case - law. The domestic courts enjoyed a certain margin of appreciation in their assessment. The role of the Court should be in line with the principle of subsidiarity and the Court should only intervene where the domestic courts had considered irrelevant factors to be significant or where the conclusion reached had been clearly arbitrary or summarily dismissive of the interests at stake. The domestic courts were granted a wider margin in respect of positive obligations in relation to private parties where opinions within democratic society might differ significantly. 30. The Government noted that the domestic courts had analysed the material as a whole and concluded that the statement had been a value judgment. The topic, the justice system ’ s handling of sexual violence, was a debate of general interest and the applicant ’ s case had been high - profile. The applicant had been a well-known person in Iceland, with a clear incentive to maintain his place in popular culture, something he did by promoting his alter ego, often stirring up debates with controversial comments about women or minority groups. He had been aware that his methods were controversial and he had had long - standing public feuds with other well-known persons. He had made strongly - worded statements and declarations in the media while the investigation was ongoing. The material had been distributed by an ordinary person expressing a value judgment on a burning social topic at the time. 2. The Court ’ s assessment 31. The Court notes that the present case requires an examination of whether a fair balance has been struck between the applicant ’ s right to the protection of his private life under Article 8 of the Convention and the other party ’ s right to freedom of expression as guaranteed by Article 10. It therefore considers it useful to reiterate the relevant general principles. (a) General principles 32. The notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which extends to a number of aspects relating to personal identity, such as a person ’ s name or image, and furthermore includes a person ’ s physical and psychological integrity ( see Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 ‑ VI, with further references). 33. Furthermore, it has been accepted by the Court that a person ’ s right to protection of his or her reputation is encompassed by Article 8 as part of the right to respect for private life. The Court has also concluded that a person ’ s reputation is part of their personal identity and moral integrity, which are a matter of private life even if the person is criticised in a public debate (see Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007 ‑ XII, and Petrie v. Italy, no. 25322/12, § 39, 18 May 2017 ). The same considerations apply to a person ’ s honour ( A. v. Norway, no. 28070/06, § 64, 9 April 2009, and Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007). 34. However, in order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see, inter alia, Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012, Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015, and Medžlis Islamske Zajednice Brčko and others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, 27 June 2017 ). 35. The Court notes that in cases such as the present one, it is for the Court to determine whether the State, in fulfilling its positive obligations under Article 8 of the Convention, has struck a fair balance between the applicant ’ s right to respect for his private life and the right of the opposing party to freedom of expression protected by Article 10 of the Convention. Moreover, paragraph 2 of Article 10 recognises that freedom of expression may be subject to certain restrictions necessary to protect the rights and reputation of others. 36. The Court also points out that the choice of the means to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation. In this connection, there are different ways of ensuring “respect for private life”, and the nature of the State ’ s obligation will depend on the particular aspect of private life that is at issue. Similarly, under Article 10 of the Convention, Contracting States have a certain margin of appreciation in assessing the necessity and extent of an interference with the freedom of expression protected by the Convention. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. In exercising its supervisory function, the Court ’ s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see, inter alia, Petrie v. Italy, cited above, § 40 - 41, with further references). 37. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention or under Article 10. Indeed, as a matter of principle these rights deserve equal respect. Accordingly, the margin of appreciation should in theory be the same in both cases ( Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, ECHR 2015 (extracts) ). 38. Where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court ’ s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts ( Bédat v. Switzerland [GC], no. 56925/08, § 54, ECHR 2016, with further references). 39. Relevant criteria for balancing the right to respect for private life against the right to freedom of expression may be : the contribution to a debate of general interest; how well-known is the person concerned and what is the subject of the report; his or her prior conduct; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanctions imposed (see, for example, Axel Springer AG v. Germany, cited above, § 89-9 5, and Von Hannover v. Germany (no. 2), cited above, § 108-113). 40. Lastly the Court points out that, in order to assess the justification for an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive ( see Do Carmo de Portugal e Castro Câmara v. Portugal, no. 53139/11, § 31, 4 October 2016 and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, 17 December 2004 ). (b) Application of those principles to the present case 41. The present complaint concerns an altered picture of the applicant which was published by X on an open Instagram account along with the caption “ Fuck you rapist bastard”. X had used a front page picture which had been published along with an interview with the applicant in an Icelandic magazine, Monitor, the same day. 42. In the circumstances of the present case, the Court considers it appropriate to consider the following applicable criteria, in this specific order: how well-known is the person concerned, the subject matter of the statement and the prior conduct of the person concerned; the contribution to a debate of general interest and the content, form and consequences of the publication, including the method of obtaining the information and its veracity. (i) How well - known was the applicant, the subject matter and the applicant ’ s conduct prior to the publication of the impugned statement 43. As noted above, the subject matter at issue was an altered picture of the applicant published on X ’ s Instagram account along with the caption “Fuck you rapist bastard”, shortly after two rape charges against the applicant had been dropped. The domestic courts, in their judgments, gave a detailed account about the applicant being a well-known person, and his prior conduct. They described his professional activities, inter alia, his online writing, publication of books, appearances on television and his way of presenting himself in the media. The courts noted that his views had attracted attention and controversy, including his attitudes towards women and their sexual freedom, and that he had participated in and explained his views in public discussions. Furthermore, the complaints against the applicant about sexual violence had led to public discussions in which he had participated. 44. In the light of the domestic courts ’ findings, the Court agrees that the limits to acceptable criticism must accordingly be wider in the present case than in the case of an individual who is not well-known ( see, inter alia, Erla Hlynsdόttir v. Iceland, no. 43380/10, § 65, 10 July 2012, with further references). However, “while reporting on true facts about politicians or other public persons ’ private life may be admissible in certain circumstances, even persons known to the public have legitimate expectations of protection of, and respect for, their private life ” ( see Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 53, 4 June 2009 ). (ii) Contribution to a debate of general interest 45. The domestic courts concluded that the publication of the picture had been a part of general public debate in the light of the fact that the applicant was a well-known person in Iceland and had participated in public discussions about his professional activities and the complaints against him of sexual violence. Furthermore, the Supreme Court stated: “ When the [applicant] appeared in the aforementioned newspaper interview and employed provocative, if not derogatory, comments about others, including the girl who had accused him of sexual violence, he launched a public debate and should, moreover, have known that his comments would result in strong reactions from those who strongly disliked his abovementioned views ”. The Court agrees with the domestic courts that, in the light of the fact that the applicant was a well-known person and the impugned statement was a part of a debate concerning accusations of a serious criminal act, it was an issue of general interest. The Court will now examine whether, due to the content, form and consequences of the impugned publication the national courts struck a fair balance between the applicant ’ s rights under Article 8 of the Convention and X ’ s rights under Article 10. (iii) Content, form and consequences of the impugned publication 46. The Supreme Court, in its judgment of 20 November 2014, stated that the altered picture along with the caption had been accessible not only to X ’ s followers on Instagram, but to other users of the medium as well. The court concluded that, either way, it had been made available publicly and therefore came under Article 236 of the Penal Code. The Court sees no reason to disagree with the Supreme Court ’ s assessment on this point. In that respect the Court deems important to recall its previous case-law where it has recognised that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general. At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (see, inter alia, Delfi AS v. Estonia, § 133, cited above).” 47. The crux of the matter before the domestic courts was whether or not the statement “Fuck you rapist bastard” had been a statement of fact or a value judgment. The majority of the Supreme Court, in its judgment, stated: “Although it can be agreed that by using the term ‘ rapist ’ about a named person, that person is being accused of committing rape, account must be taken of the context in which the term is set, cf. the ruling of the Supreme Court on 29 January 2009 in Case No 321/2008. If the altered picture and the comment ‘ Fuck you rapist bastard ’ are taken as a whole – as the parties agree should be the case – the Supreme Court agrees with the District Court that this was a case of invective on the part of [X] against the [applicant] in a ruthless public debate, which the latter, as stated previously, had instigated. It was therefore a value judgment about the [applicant] and not a factual statement that he was guilty of committing rape. In this context, it makes a difference, even though this alone is not decisive for the conclusion, that [X] did not maintain that the [applicant] had thus committed a criminal offence against someone else, named or unnamed” (see paragraph 16 above). 48. The Court reiterates that the classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. The Court may, however, consider it necessary to make its own assessment of the impugned statements ( see, for example, Brosa v. Germany, no. 5709/09, 17 April 2014, §§ 43-50).” 49. The Court notes at the outset that the Supreme Court in fact accepted that by using the term “ rapist ” about a named person, that person was being accused of committing rape. However, the Supreme Court considered that the statement in question was to be classified as a value judgment when viewed in “ context ” (see paragraph 16 above). The question before the Court is therefore whether, viewed as a whole and in context, as is required by the case-law of the Court (see, for example, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 - IV), the findings of the Supreme Court were within its margin of factual appreciation that must be afforded to the national courts as to the classification of the statement (see Arnarson v Iceland, no. 58781/13, § 45, 13 June 2017 ). 50. At the outset, the Court notes that the term “ rapist ” is objective and factual in nature. It directly refers to a person who has committed the act of rape, which is criminalised under the Icelandic Penal Code (see paragraph 18 above). The veracity of an allegation of rape can therefore be proven. It follows that, viewed on its face, the statement “ Fuck you rapist bastard ” included a statement of fact as it clearly assigns the status of “ rapist ” to the person who is the subject of the statement. Although the Court does not exclude the possibility that an objective statement of fact, such as the one impugned in the present case, can, contextually, be classified as a value judgment the contextual elements justifying such a conclusion must be convincing in the light of the objective and factual nature of the term “ rapist ” taken at face value. (see, a contrario, for example, Karman v Russia, no. 29372/02, 14 December 2006, § 41, and Brosa, cited above, §§ 43-50).” 51. In this regard, the Court considers it crucial that when describing the context of the statement in question, the Supreme Court relied primarily on the applicant ’ s participation in a “ ruthless debate ” which he had “ instigated ”. The Supreme Court failed to take adequate account of the important chronological link between the publication of the statement on 22 November 2012 and the discontinuance of the criminal cases of alleged rape against the applicant, the second only a week before, on 15 November 2012, both cases being the subject matter of the magazine interview on 22 November 2012 which prompted X to publish his statement. In other words, although the Court has no reason to call into question the Supreme Court ’ s findings that the statement was a part of a “ ruthless public debate ” prompted by the applicant ’ s behaviour and public persona, the factual context in which the statement was made, and its allegation that the applicant was a “ rapist ”, was the criminal proceedings in which the applicant had been accused of the very same criminal act to which the statement referred, proceedings which had been discontinued by the public prosecutor for lack of evidence (see paragraph 6 above). 52. In light of the above, and in particular the objective and factual nature of the term “ rapist“, when viewed on its face, the Court finds that the contextual assessment made by the Supreme Court did not adequately take account of relevant and sufficient elements so as to justify the conclusion that the statement constituted a value judgment. However, even assuming that the Court were to accept the Supreme Court ’ s classification of the statement “rapist” as a value judgment, the Court recalls that under its settled case-law (see paragraph 40 above), even where a statement amounts to a value judgment there must exist a sufficient factual basis to support it, failing which it will be excessive. In the light of the discontinuance of the criminal proceedings against the applicant just prior to the publication of the applicant ’ s newspaper interview, the Supreme Court failed to explain sufficiently the factual basis that could have justified assessing the use of the term “rapist” as a value judgment, the Supreme Court merely referring, as previously mentioned, to the applicant ’ s participation in a “ruthless public debate” which he had “instigated” when he gave the interview in question. In short, Article 8 of the Convention must be interpreted to mean that persons, even disputed public persons that have instigated a heated debate due to their behaviour and public comments, do not have to tolerate being publicly accused of violent criminal acts without such statements being supported by facts. The Court therefore finds that the statement was of a serious nature and capable of damaging the applicant ’ s reputation. It reached such a level of seriousness as to cause prejudice to the applicant ’ s enjoyment of the right to respect for private life for Article 8 to come into play (see, inter alia, A v. Norway, cited above, § 64). (iv ) Conclusion 53. In the light of the above-mentioned considerations the Court finds that the domestic courts failed to strike a fair balance between the applicant ’ s right to respect for private life under Article 8 of the Convention and X ’ s right to freedom of expression under Article 10 of the Convention. The Court therefore finds that there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 54. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 55. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage. 56. The Government argued that the finding of a violation by the Court would in itself constitute just satisfaction for any non-pecuniary damage claimed. However, if the Court were to find it appropriate to award the applicant non-pecuniary damages, the amount should be reduced significantly. 57. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant. B. Costs and expenses 58. The applicant also claimed EUR 28,200 (ISK 3,413,640) for the costs and expenses incurred before the domestic courts and EUR 9,190 ( ISK 1,112,280) for those incurred before the Court. The above amounts included value added tax (“VAT”). 59. The Government left it to the Court to decide the appropriate amount of costs to be reimbursed. 60. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 10.000 in respect of cost and expenses incurred before the domestic courts and EUR 7,500 for those incurred before the Court. C. Default interest 61. The Court has taken note of the applicant ’ s invitation to apply default interest to its Article 41 award “equal to the monthly applicable interest rate published by the Central Bank of Iceland ... until settlement”, that should run from 20 November 2014, the date of the Supreme Court ’ s judgment and that the interest should run from the date when the present judgement has become final. 62. However, the Court is of the view that the applicant ’ s interest in the value of the present award being preserved has been sufficiently taken into account in its assessment above and in point 3(b) of the operative part below. In accordance with its standard practice, the Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention finding that, overall, the domestic courts had not struck a fair balance between the applicant’s right to respect for his private life under Article 8 and the right to freedom of expression under Article 10 (freedom of expression) of the Convention of the person who had posted the remark. It considered in particular that the domestic courts had not taken sufficient account of the fact that the remarks, notably the word “rapist”, had been posted just a week after prosecutors had discontinued sexual offence proceedings against the applicant. The courts had further not provided a sufficient explanation in the context of the case for their justification for finding that the word “rapist” could be used as a value judgment. The Court also underlined that Article 8 of the Convention had to be interpreted to mean that even public persons who had begun a heated debate did not have to tolerate being accused of violent criminal acts without such statements being supported by facts. |
734 | Noise pollution | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Civil Aviation Act 1982 (“the 1982 Act”) 76. Section 76(1) of the 1982 Act provides, in its relevant part: “No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case, is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order ... have been duly complied with ...” 77. Air Navigation Orders made under the 1982 Act provide for Orders in Council to be made for the regulation of aviation. Orders in Council have been made to deal with, amongst other matters, engine emissions, noise certification and compensation for noise nuisance. 78. Section 78(3) of the 1982 Act provides, in its relevant part: “If the Secretary of State considers it appropriate for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking-off or landing of aircraft at a designated aerodrome, to prohibit aircraft from taking off or landing, or limit the number of occasions on which they may take off or land, at the aerodrome during certain periods, he may by a notice published in the prescribed manner do all or any of the following, that is to say – (a) prohibit aircraft of descriptions specified in the notice from taking off or landing at the aerodrome (otherwise than in an emergency of a description so specified) during periods so specified; (b) specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land at the aerodrome ... during the periods so specified; ...” 79. Restrictions on night flights at Heathrow Airport are imposed by means of notices published by the Secretary of State under section 78(3) of the 1982 Act. B. The challenges to the 1993 Scheme 80. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State's decision to introduce the 1993 Scheme. They made four consecutive applications for judicial review, and appealed twice to the Court of Appeal. The High Court declared that the 1993 Scheme was contrary to the terms of section 78(3)(b) of the 1982 Act, and therefore invalid, because it did not “specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land” but, instead, imposed controls by reference to levels of exposure to noise energy (see R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1994] 1 Weekly Law Reports 74). 81. The Secretary of State decided to retain the quota count system, but with the addition of an overall maximum number of aircraft movements. This decision was held by the High Court to be in accordance with section 78(3)(b) of the 1982 Act. However, the 1993 Consultation Paper was held to have been “materially misleading” in failing to make clear that the implementation of the proposals for Heathrow Airport would permit an increase in noise levels over those experienced in 1988 (see R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1995] Environmental Law Reports 390). 82. Following the publication of a further Consultation Paper in March 1995, and of a supplement to the March 1995 Consultation Paper in June 1995, the local authorities brought a further application for judicial review. In July 1996, the Court of Appeal decided that the Secretary of State had given adequate reasons and sufficient justification for his conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree local people's ability to sleep at night because of the other countervailing considerations to which he was, in 1993, willing to give greater weight, and that by June 1995 errors in the consultation papers had been corrected and the new policy could not be said to be irrational (see R. v. Secretary of State for Transport, ex parte Richmond LBC [1996] 1 Weekly Law Reports 1460). 83. On 12 November 1996 the House of Lords dismissed a petition by the local authorities for leave to appeal against the decision of the Court of Appeal. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 84. The applicants complained that the government policy on night flights at Heathrow introduced in 1993 violated their rights under Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Government denied that there had been any violation of the Convention in this case. A. The general principles 1. The Chamber's judgment 85. In its judgment of 2 October 2001, the Chamber held that because Heathrow Airport and the aircraft which used it were not owned, controlled or operated by the government or its agents, the United Kingdom could not be said to have “interfered” with the applicants' private or family lives. Instead, the Chamber analysed the applicants' complaints in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under Article 8 § 1 (see paragraph 95 of the Chamber's judgment). 86. The Chamber further held that, whatever analytical approach was adopted, regard must be had to the fair balance that had to be struck between the competing interests of the individual and the community as a whole. In both contexts, the State enjoyed a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see paragraph 96 of the Chamber's judgment). However, the Chamber underlined that in striking the required balance States must have regard to the whole range of material considerations. Further, in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country was not sufficient to outweigh the rights of others. The Chamber considered that States were required to minimise, as far as possible, interference with Article 8 rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study, with the aim of finding the best possible solution which would, in reality, strike the right balance, should precede the relevant project (see paragraph 97 of the Chamber's judgment). 2. The parties' submissions (a) The Government 87. In their letter requesting that the case be referred to the Grand Chamber, and in their written and oral observations to the Grand Chamber, the Government strongly objected to the “minimum interference” approach outlined by the Chamber in paragraph 97 of its judgment. The Government argued that this test in the context of the present type of case was at odds with a consistent line of Convention jurisprudence and was unwarranted in principle. They submitted that the test reduced to vanishing-point the margin of appreciation afforded to States in an area involving difficult and complex balancing of a variety of competing interests and factors. 88. Not merely was there clear authority in favour of a wide margin, it was appropriate and right in principle that the State should be allowed such a margin in a context such as the present, since it involved the balancing of a number of competing rights and interests, the importance and sensitivity of some of which might be difficult accurately to evaluate. There was no single correct policy to be applied as regards the regulation of night flights; States could and did adopt a variety of different approaches. The Government reasoned that the present context was similar to the field of planning policy, where the Court had consistently recognised that by reason of their direct and continuous contact with the vital forces of their countries and because of the range of discretionary issues involved, the national authorities were in principle better placed than an international court to evaluate local conditions and needs. 89. They accepted that inherent in the striking of a fair balance was a need to be sufficiently informed in relation to the relevant issues, in order to avoid making or appearing to make an arbitrary decision. However, the decision-making process was primarily for the national authorities, in this case, the government, subject to judicial review by the domestic courts. The European Court's powers in this context were supervisory: in the absence of any indication of an arbitrary or clearly inadequate investigation, a detailed and minute critique of the information which the government should take into account was neither necessary nor appropriate. (b) The applicants 90. The applicants argued that it was well established from previous case-law that aircraft noise was capable of infringing the Article 8 rights of those sufficiently affected by it and that national authorities owed a positive duty to take steps to ensure the effective protection of these rights. Relying on earlier environmental cases and also child-care and other cases under Article 8, they submitted that the duty could be breached in circumstances where, having regard to the margin of appreciation, the Court considered that the State had struck the wrong substantive balance between the interest it pursued and the individual's effective enjoyment of the Article 8 right, or where there had been a procedural failing, such as the failure to disclose information to an individual affected by environmental nuisance or a failure to base a decision-making process on the relevant considerations or to give relevant and sufficient reasons for an interference with a fundamental right. 91. The applicants accepted that any informed assessment of whether an interference with Article 8 rights was “necessary in a democratic society” would be accorded a margin of appreciation, the width of that margin depending on the context. However, they submitted that in the present case the margin should be narrow, because deprivation of sleep by exposure to excessive noise, like the infliction of inhuman or degrading treatment, was a matter which could and should be judged by similar standards in similar Contracting States. 92. Moreover, where a case – such as the present – could be decided on the basis of a procedural breach, namely the government's failure properly to assemble the evidence necessary for the decision-making process, the doctrine of the margin of appreciation had no role to play, since the international judge was well placed to assess the adequacy of the procedural safeguards applied by the State. 93. For the applicants, the approach of the Chamber – that the violation of Article 8 was based on the government's failure to assemble the evidence that would have been necessary for the decision to be made on the basis of the relevant considerations – was but one way of dealing with the case. A violation of Article 8 could also be established on the basis that the necessary steps to ensure protection of Article 8 rights were not taken, that “relevant and sufficient reasons” had not been given for the interference, or that the substantive balance of interests had not been properly struck. 3. The third parties 94. Friends of the Earth submitted that the Chamber's judgment in the present case was consistent with developments in national and international law concerning the relationship between human rights and the environment. In particular, it was consistent with requirements under general international law requiring decision-makers to satisfy themselves by means of proper, complete, and prior investigation as to the factors which should be taken into account in order to achieve an appropriate balance between individual rights and the State's economic interests. 95. British Airways did not comment on the general principles to be applied by the Court. 4. The Court's assessment 96. Article 8 protects the individual's right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8. Thus, in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, p. 18, § 40), where the applicants had complained about disturbance from daytime aircraft noise, the Court held that Article 8 was relevant, since “the quality of [each] applicant's private life and the scope for enjoying the amenities of his home [had] been adversely affected by the noise generated by aircraft using Heathrow Airport”. Similarly, in López Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-C, pp. 54-55, § 51) the Court held that Article 8 could include a right to protection from severe environmental pollution, since such a problem might “affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I), which, like López Ostra, concerned environmental pollution, the Court observed that “[the] direct effect of the toxic emissions on the applicants' right to respect for their private and family life means that Article 8 is applicable” (p. 227, § 57). 97. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46, where the Court found it natural that the margin of appreciation “available to the legislature in implementing social and economic policies should be a wide one”). 98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner, p. 18, § 41, and López Ostra pp. 54-55, § 51, both cited above). 99. The Court considers that in a case such as the present one, involving State decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual. 100. In relation to the substantive aspect, the Court has held that the State must be allowed a wide margin of appreciation. In Powell and Rayner, for example, it asserted that it was “certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere”, namely the regulation of excessive aircraft noise and the means of redress to be provided to the individual within the domestic legal system. The Court continued that “this is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation” (p. 19, § 44). 101. In other cases involving environmental issues, for example planning cases, the Court has also held that the State must be allowed a wide margin of appreciation. The Court explained the reasons for this approach in Buckley v. the United Kingdom, where the applicant complained that she had been denied planning permission to install a residential caravan on land that she owned (judgment of 25 September 1996, Reports 1996-IV, pp. 1291-93, §§ 74-77): “74. As is well established in the Court's case-law, it is for the national authorities to make the initial assessment of the 'necessity' for an interference, as regards both the legislative framework and the particular measure of implementation ... Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention. The scope of this margin of appreciation is not identical in each case but will vary according to the context ... Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned. 75. The Court has already had occasion to note that town and country planning schemes involve the exercise of discretionary judgment in the implementation of policies adopted in the interest of the community ... It is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases ... By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation. 76. The Court cannot ignore, however, that in the instant case the interests of the community are to be balanced against the applicant's right to respect for her 'home', a right which is pertinent to her and her children's personal security and well-being ... The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State. Whenever discretion capable of interfering with the enjoyment of a Convention right such as the one in issue in the present case is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 ... 77. The Court's task is to determine, on the basis of the above principles, whether the reasons relied on to justify the interference in question are relevant and sufficient under Article 8 § 2.” 102. The Court has recognised that, where government policy in the form of criminal laws interferes with a particularly intimate aspect of an individual's private life, the margin of appreciation left to the State will be reduced in scope (see Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 21, § 52). 103. The Court is thus faced with conflicting views as to the margin of appreciation to be applied: on the one hand, the Government claim a wide margin on the ground that the case concerns matters of general policy, and, on the other hand, the applicants' claim that where the ability to sleep is affected, the margin is narrow because of the “intimate” nature of the right protected. This conflict of views on the margin of appreciation can be resolved only by reference to the context of a particular case. 104. In connection with the procedural element of the Court's review of cases involving environmental issues, the Court is required to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals (including the applicants) were taken into account throughout the decision-making procedure, and the procedural safeguards available. B. Appraisal of the facts of the case in the light of the general principles 1. The Chamber's judgment 105. The Chamber found that, overall, the level of noise during the hours 11.30 p.m. to 6 a.m. had increased under the 1993 Scheme. It considered that, in permitting increased levels of noise from 1993 onwards, the government had failed to respect their positive obligation to the applicants, through omitting, either directly or through the commissioning of independent research, to assess critically the importance of the contribution of night flights to the United Kingdom economy. The Chamber further criticised the government for carrying out only limited research into the effects of night flights on local residents prior to the introduction of the 1993 Scheme, noting that the 1992 sleep study was limited to sleep disturbance and made no mention of the problem of sleep prevention. The Chamber did not accept that the “modest” steps taken to mitigate night noise under the 1993 Scheme were capable of constituting “the measures necessary” to protect the applicants. It concluded that “in the absence of any serious attempt to evaluate the extent or impact of the interferences with the applicants' sleep patterns, and generally in the absence of a prior specific and complete study with the aim of finding the least onerous solution as regards human rights, it is not possible to agree that in weighing the interferences against the economic interest of the country – which itself had not been quantified – the government struck the right balance in setting up the 1993 Scheme”. 2. The parties' submissions (a) The Government 106. The Government recognised that night-time noise from aircraft had the capacity to disturb or prevent sleep, but urged the Court to assess critically the applicants' claims that each suffered from a high level of disturbance. In this connection they pointed out that there was a considerable variety in the geographical positions of the applicants and in the levels of night noise to which they were exposed. Furthermore, it was noteworthy that hundreds of thousands of residents of London and the home counties were in a similar position, that the property market in the affected areas was thriving and that the applicants had not claimed that they were unable to sell their houses and move. 107. The Government stressed that all other principal European hub airports had less severe restrictions on night flights than those imposed at the three London airports. Paris-Charles de Gaulle and Amsterdam-Schiphol had no restrictions at all on the total number of “Chapter 3” aircraft which could operate at night, while Frankfurt had restrictions on landings by Chapter 3 aircraft between 1 a.m. and 4 a.m. If restrictions on night flights at Heathrow were made more stringent, UK airlines would be placed at a significant competitive disadvantage. Since 1988 they had used the scarce night slots permitted at Heathrow for two purposes: a small number were late evening departures on flights which had been delayed but the majority, typically thirteen to sixteen flights a night, were early morning arrivals between 4 a.m. and 6 a.m. of long-haul scheduled flights, mainly from South-East Asia, North America and southern Africa. In recent years the airlines concerned had taken steps to ensure that these arrivals did not land before 4.30 a.m. The Government submitted that these flights formed an integral part of the network of connecting air services. If they were forced to operate during the day they could provide fewer viable connections with regional services at both ends, making London a less attractive place in which to do business. In any event, daytime capacity at all of London's airports was close to full, and it would be impracticable to re-schedule flights out of the night period. 108. The Government asserted that before 1993 detailed reviews were conducted into a number of aspects of the night restrictions regime. Thus, in July 1990 the Department of Transport commenced an internal review into the restrictions then applying and, in January, October and November 1993, and also in March and June 1995, published Consultation Papers to seek the views of the public and the industries concerned on the need for and effects of night flights and on various proposed modifications to the regime. The respondents from the airline industry stressed the economic importance of night flights, as set out above. They provided information showing that, in 1993, a typical daily night flight would generate an annual revenue of between GBP 70 and 175 million and an annual profit of up to GBP 15 million. The loss of this revenue and profit would impact severely on the ability of airlines to operate and the cost of air travel by day and night. The Government submitted that the basic components of the economic justification for night flights have never been substantially challenged, either by other respondents to the Consultation Papers or since. Despite accepting the force of the economic justification, the authorities did not go as far as they were invited to by the industry; for example, they did not grant the repeated requests for much larger night noise quotas or a night quota period ending at 5 a.m. Instead, they struck a genuine balance between the interests of the industry and of local residents. 109. The Government stressed that they had also had available, in December 1992, the results of research commissioned in July 1990 into aircraft noise disturbance amongst people living near to Gatwick, Heathrow, Stansted and Manchester Airports (“the 1992 sleep study” – see paragraph 35 above). This study was, and remained, the most comprehensive of its type, and had been preceded by a number of other reports into aircraft noise and sleep disturbance, including detailed interviews with some 1,636 people living near the airports (“the social survey”). The purpose of all this research, culminating in the 1992 sleep study, was to provide information, on as reliable a scientific basis as possible, as to the effects of night-time aircraft noise on sleep. The sleep study showed that external noise levels below 80 dBA were very unlikely to cause any increase in the normal rate of disturbance of someone's sleep; that with external noise levels between 80 and 95 dBA the likelihood of an average person being awakened was about 1 in 75; and that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall disturbance rates, although it was possible that the 2 to 3% of the population who were more sensitive to noise disturbance were twice as likely to be woken. According to the social survey, approximately 80% of those living in the Heathrow area had said that they were never or only sometimes woken up for any cause. Of those that were woken, 17% gave aircraft noise as the cause, 16% blamed a partner or a child and another 28.5% gave a variety of different reasons. Approximately 35% of those living near Heathrow said that if woken, for any reason, they found it difficult to get back to sleep. 110. The Government submitted that the changes to the hours of restriction, the extension of the quota restrictions to place limits on many previously exempt types of aircraft and the restrictions on the scheduling for landing or taking off of the noisiest categories of aircraft over a longer night period made an exact comparison between the regimes before and after 1993 impossible. They recognised that there had been an increase in the number of movements between 6 a.m. and 6.30 a.m. in winter, since this time slot had been subject to restriction before 1993 and now fell outside the quota period. However, the Government contended that, during the core quota period of 11.30 p.m. to 6 a.m., there had been an improvement in the noise environment because of the measures taken, notably the introduction of the quota count system, to encourage the use of quieter aircraft at night. (b) The applicants 111. The applicants, who accepted the Chamber's judgment as one way of applying the Convention to the facts of the case, underlined that only a very small percentage of flights take place between 11.30 p.m. and 6 a.m., and that there are hardly any flights before 4 a.m. at all, with an average of four aircraft landing between 4 a.m. and 4.59 a.m. in 2000, and eleven between 5 a.m. and 5.59 a.m.. They maintained that the disturbance caused by these flights was extensive because the applicants and large numbers of others were affected, and it is the nature of sleep disturbance that once people are awake even a few flights will keep them awake. 112. The applicants also pointed out that the night noise they are subjected to is frequently in excess of international standards: the World Health Organisation sets as a guideline value for avoiding sleep disturbance at night a single noise event level of 60 dBA Lmax; almost all the applicants have suffered night noise events in excess of 80 dBA Lmax, and in one case as high as 90 dBA Lmax. Because of the logarithmic nature of the decibel scale, noise energy at 80 dBA Lmax is one hundred times the noise energy at 60 dBA Lmax, and in terms of subjective loudness is four times as loud. 113. The applicants contended that the 1993 Scheme was bound to, and did, result in an increase in night flights and deterioration in the night noise climate, regardless of whether the position was measured by reference to the official night period from 11 p.m. to 7 a.m. or the night quota period from 11.30 a.m. to 6 a.m.. 114. The applicants pointed to the absence of any research into sleep prevention before the 1993 Scheme, and added that post-1993 studies and proposals did not amount to an assessment of the effect of night noise on sleep prevention. They further noted the absence of any government-commissioned research into the economic benefits claimed for night flights, seeing this omission as particularly serious given that many of the world's leading business centres (for example, Berlin, Zürich, Munich, Hamburg and Tokyo) have full night-time passenger curfews of between seven and eight hours. 3. The third parties 115. British Airways, whose submissions were supported by the British Air Transport Association (BATA) and the International Air Transport Association (IATA), submitted that night flights at Heathrow play a vital role in the United Kingdom's transport infrastructure, and contribute significantly to the productivity of the United Kingdom economy and the living standards of United Kingdom citizens. They contended that a ban on, or reduction in, night flights would cause major and disproportionate damage to British Airways' business, and would reduce consumer choice. The loss of night flights would cause significant damage to the United Kingdom economy. 4. The Court's assessment 116. The case concerns the way in which the applicants were affected by the implementation in 1993 of the new scheme for regulating night flights at Heathrow. The 1993 Scheme was latest in the series of restrictions on night flights which began at Heathrow in 1962 and replaced the previous five-year 1988 Scheme. Its aims included, according to the 1993 Consultation Paper (see paragraph 36 above), both protection of local communities from excessive night noise, and taking account of the wider economic implications. The undertaking given by the government in 1988 “not to allow a worsening of noise at night, and ideally to improve it” was maintained (see paragraphs 41 and 43 above). Specifically, the scheme replaced the earlier system of movement limitations with a regime which gave aircraft operators a choice, through the quota count, as to whether to fly fewer noisier aircraft, or more less noisy types (for details, see paragraphs 44-46 above). Although modified in some respects following various judicial review proceedings (see paragraphs 47-50 and 80-83 above) and as a result of further studies and consultations (see paragraphs 51-69 above), the quota count system introduced in 1993 has remained in place to the present day, the authorities continuing to monitor the situation with a view to possible improvements (see paragraphs 70-75 above). 117. The 1993 Scheme accepted the conclusions of the 1992 sleep study (see paragraph 35 above) that for the large majority of people living near airports there was no risk of substantial sleep disturbance due to aircraft noise and that only a small percentage of individuals (some 2 to 3%) were more sensitive than others. On this basis, disturbances caused by aircraft noise were regarded as negligible in relation to overall normal disturbance rates (see paragraph 40 above). The 1992 sleep study continued to be relied upon by the government in their 1998/99 review of the regulations for night flights, when it was acknowledged that further research was necessary, in particular as regards sleep prevention, and a number of further studies on the subject were commissioned (see paragraphs 58-59 and 73 above). 118. The Court has no doubt that the implementation of the 1993 Scheme was susceptible of adversely affecting the quality of the applicants' private life and the scope for their enjoying the amenities of their respective homes, and thus their rights protected by Article 8 of the Convention. Each of the applicants has described the way in which he or she was affected by the changes brought about by the 1993 Scheme at the relevant time (see paragraphs 11-26 above), and the Court sees no reason to doubt the sincerity of their submissions in this respect. It is true that the applicants have not submitted any evidence in support of the degree of discomfort suffered, in particular they have not disproved the Government's indications as to the “objective” daytime noise contour measured at each applicant's home (ibid.). However, as the Government themselves admit, and as is evident from the 1992 sleep study on which they rely, sensitivity to noise includes a subjective element, a small minority of people being more likely than others to be woken or otherwise disturbed in their sleep by aircraft noise at night. The discomfort caused to the individuals concerned will therefore depend not only on the geographical location of their respective homes in relation to the various flight paths, but also on their individual disposition to be disturbed by noise. In the present case the degree of disturbance may vary somewhat from one applicant to the other, but the Court cannot follow the Government when they seem to suggest that the applicants were not, or not considerably, affected by the scheme at issue. 119. It is clear that in the present case the noise disturbances complained of were not caused by the State or by State organs, but that they emanated from the activities of private operators. It may be argued that the changes brought about by the 1993 Scheme are to be seen as a direct interference by the State with the Article 8 rights of the persons concerned. On the other hand, the State's responsibility in environmental cases may also arise from a failure to regulate private industry in a manner securing proper respect for the rights enshrined in Article 8 of the Convention. As noted above (see paragraph 98), broadly similar principles apply whether a case is analysed in terms of a positive duty on the State or in terms of an interference by a public authority with Article 8 rights to be justified in accordance with paragraph 2 of this provision. The Court is not therefore required to decide whether the present case falls into the one category or the other. The question is whether, in the implementation of the 1993 policy on night flights at Heathrow Airport, a fair balance was struck between the competing interests of the individuals affected by the night noise and the community as a whole. 120. The Court notes at the outset that in previous cases in which environmental questions gave rise to violations of the Convention, the violation was predicated on a failure by the national authorities to comply with some aspect of the domestic regime. Thus, in López Ostra, the waste-treatment plant at issue was illegal in that it operated without the necessary licence, and was eventually closed down ( López Ostra, cited above, pp. 46 ‑ 47, §§ 16-22). In Guerra and Others, the violation was also founded on an irregular position at the domestic level, as the applicants had been unable to obtain information that the State was under a statutory obligation to provide ( Guerra and Others, cited above, p. 219, §§ 25-27). This element of domestic irregularity is wholly absent in the present case. The policy on night flights which was set up in 1993 was challenged by the local authorities, and was found, after a certain amount of amendment, to be compatible with domestic law. The applicants do not suggest that the policy (as amended) was in any way unlawful at a domestic level, and indeed they have not exhausted domestic remedies in respect of any such claim. Further, they do not claim that any of the night flights which disturbed their sleep violated the relevant regulations, and again any such claim could have been pursued in the domestic courts under section 76(1) of the Civil Aviation Act 1982. 121. In order to justify the night flight scheme in the form in which it has operated since 1993, the Government refer not only to the economic interests of the operators of airlines and other enterprises as well as their clients, but also, and above all, to the economic interests of the country as a whole. In their submission these considerations make it necessary to impinge, at least to a certain extent, on the Article 8 rights of the persons affected by the scheme. The Court observes that according to the second paragraph of Article 8 restrictions are permitted, inter alia, in the interests of the economic well-being of the country and for the protection of the rights and freedoms of others. It is therefore legitimate for the State to have taken the above economic interests into consideration in the shaping of its policy. 122. The Court must consider whether the State can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbances, including the applicants. Environmental protection should be taken into consideration by States in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue (see paragraph 103 above). 123. The Court notes that the introduction of the 1993 Scheme for night flights was a general measure not specifically addressed to the applicants in this case, although it had obvious consequences for them and other persons in a similar situation. However, the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in Dudgeon to call for an especially narrow scope for the State's margin of appreciation (see Dudgeon, cited above, p. 21, § 52, and paragraph 102 above). Rather, the normal rule applicable to general policy decisions (see paragraph 97 above) would seem to be pertinent here, the more so as this rule can be invoked even in relation to individually addressed measures taken in the framework of a general policy, such as in Buckley, cited above (see paragraph 101). Whilst the State is required to give due consideration to the particular interests, the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation. The Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance. 124. In the present case the Court first notes the difficulties in establishing whether the 1993 Scheme actually led to a deterioration of the night noise climate. The applicants contend that it did; the Government disagree. Statements in the 1998 Consultation Paper suggest that, generally, the noise climate around Heathrow may have improved during the night quota period, but probably deteriorated over the full night period (see paragraph 61 above). The Court is not able to make any firm findings on this point. It notes the dispute between the parties as to whether aircraft movements or quota counts should be employed as the appropriate yardstick for measuring night noise. However, it finds no indication that the authorities' decision to introduce a regime based on the quota count system was as such incompatible with Article 8. 125. Whether in the implementation of that regime the right balance has been struck in substance between the Article 8 rights affected by the regime and other conflicting community interests depends on the relative weight given to each of them. The Court accepts that in this context the authorities were entitled, having regard to the general nature of the measures taken, to rely on statistical data based on average perception of noise disturbance. It notes the conclusion of the 1993 Consultation Paper that due to their small number sleep disturbances caused by aircraft noise could be treated as negligible in comparison to overall normal disturbance rates (see paragraph 40 above). However, this does not mean that the concerns of the people affected were totally disregarded. The very purpose of maintaining a scheme of night flight restrictions was to keep noise disturbance at an acceptable level for the local population living in the area near the airport. Moreover, there was a realisation that in view of changing conditions (increase of air transport, technological advances in noise prevention, development of social attitudes, etc.) the relevant measures had to be kept under constant review. 126. As to the economic interests which conflict with the desirability of limiting or halting night flights in pursuance of the above aims, the Court considers it reasonable to assume that those flights contribute at least to a certain extent to the general economy. The Government have produced to the Court reports on the results of a series of inquiries on the economic value of night flights, carried out both before and after the 1993 Scheme. Even though there are no specific indications about the economic cost of eliminating specific night flights, it is possible to infer from those studies that there is a link between flight connections in general and night flights. In particular, the Government claim that some flights from Far-East destinations to London could arrive only by departing very late at night, giving rise to serious passenger discomfort and a consequent loss of competitiveness. One can readily accept that there is an economic interest in maintaining a full service to London from distant airports, and it is difficult, if not impossible, to draw a clear line between the interests of the aviation industry and the economic interests of the country as a whole. However, airlines are not permitted to operate at will, as substantial limitations are put on their freedom to operate, including the night restrictions which apply at Heathrow. The Court would note here that the 1993 Scheme which was eventually put in place was stricter than that envisaged in the 1993 Consultation Paper, as even the quietest aircraft were included in the quota count system. The Government have in addition resisted calls for a shorter night quota period, or for the lifting of night restrictions. The Court also notes subsequent modifications to the system involving further limitations for the operators, including, inter alia, the addition of an overall maximum number of permitted aircraft movements (see paragraph 50 above) and reduction of the available quota count points (see paragraph 66 above). 127. A further relevant factor in assessing whether the right balance has been struck is the availability of measures to mitigate the effects of aircraft noise generally, including night noise. A number of measures are referred to above (see paragraph 74). The Court also notes that the applicants do not contest the substance of the Government's claim that house prices in the areas in which they live have not been adversely affected by the night noise. The Court considers it reasonable, in determining the impact of a general policy on individuals in a particular area, to take into account the individuals' ability to leave the area. Where a limited number of people in an area (2 to 3% of the affected population, according to the 1992 sleep study) are particularly affected by a general measure, the fact that they can, if they choose, move elsewhere without financial loss must be significant to the overall reasonableness of the general measure. 128. On the procedural aspect of the case, the Court notes that a governmental decision-making process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake. However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. In this respect it is relevant that the authorities have consistently monitored the situation, and that the 1993 Scheme was the latest in a series of restrictions on night flights which stretched back to 1962. The position concerning research into sleep disturbance and night flights is far from static, and it was the government's policy to announce restrictions on night flights for a maximum of five years at a time, each new scheme taking into account the research and other developments of the previous period. The 1993 Scheme had thus been preceded by a series of investigations and studies carried out over a long period of time. The particular new measures introduced by that scheme were announced to the public by way of a Consultation Paper which referred to the results of a study carried out for the Department of Transport, and which included a study of aircraft noise and sleep disturbance. It stated that the quota was to be set so as not to allow a worsening of noise at night, and ideally to improve the situation. This paper was published in January 1993 and sent to bodies representing the aviation industry and people living near airports. The applicants and persons in a similar situation thus had access to the Consultation Paper, and it would have been open to them to make any representations they felt appropriate. Had any representations not been taken into account, they could have challenged subsequent decisions, or the scheme itself, in the courts. Moreover, the applicants are, or have been, members of HACAN (see paragraph 1 above), and were thus particularly well-placed to make representations. 129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights. 130. There has accordingly been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 131. The applicants contended that judicial review was not an effective remedy in relation to their rights under Article 8 of the Convention, in breach of Article 13. Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 132. The Government disputed the applicants' contention that there had been a violation of Article 13. A. The Chamber's judgment 133. In its judgment of 2 October 2001, the Chamber held that the scope of review by the domestic courts did not allow consideration of whether the increase in night flights under the 1993 Scheme represented a justifiable limitation on the Article 8 rights of those who live in the vicinity of Heathrow Airport (see paragraphs 115 and 116 above). B. The parties' submissions 1. The Government 134. In their letter requesting that the case be referred to the Grand Chamber, the Government made no reference to Article 13 of the Convention. In subsequent communications they referred back to the pleadings before the Commission and the Chamber, summarised at paragraphs 112 and 113 of the Chamber's judgment, in which they contended that Article 13 was not applicable or, in the alternative, that the scope of judicial review was sufficient to satisfy the requirements of that provision. At the hearing of 13 November 2002 the Government underlined that the present case concerned positive rather than negative obligations, and pointed to similarities between the judicial review proceedings in the United Kingdom and the Convention approach. 2. The applicants 135. The applicants contended, as they had before the Chamber, that they had no private-law rights in relation to excessive night noise, as a consequence of the statutory exclusion of liability in section 76 of the Civil Aviation Act 1982. They submitted that the limits inherent in an application for judicial review meant that it was not an effective remedy. They added that in R. (Daly) v. Secretary of State for the Home Department ([2001] 2 Appeal Cases 532), the House of Lords had confirmed the inadequacy of the approach in R. v. Minister of Defence, ex parte Smith ([1996] Queen's Bench Reports 517). C. The third parties 136. The third parties did not comment on the Article 13 issues. D. The Court's assessment 137. As the Chamber observed, Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, pp. 23-24, § 54). In the present case, it has not found a violation of Article 8, but the Court considers that confronted with a finding by the Chamber that the Article 8 issues were admissible and indeed that there was a violation of that provision, it must accept that the claim under Article 8 was arguable. The complaint under Article 13 must therefore be considered. 138. The Court would first reiterate that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State's laws to be challenged before a national authority on the ground of being contrary to the Convention (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 62, § 40). Similarly, it does not allow a challenge to a general policy as such. Where an applicant has an arguable claim to a violation of a Convention right, however, the domestic regime must afford an effective remedy (ibid., p. 62, § 39). 139. As the Chamber found, section 76 of the 1982 Act prevents actions in nuisance in respect of excessive noise caused by aircraft at night. The applicants complain about the flights which were permitted by the 1993 Scheme, and which were in accordance with the relevant regulations. No action therefore lay in trespass or nuisance in respect of lawful night flights. 140. The question which the Court must address is whether the applicants had a remedy at national level to “enforce the substance of the Convention rights ... in whatever form they may happen to be secured in the domestic legal order” (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, pp. 38-40, §§ 117-27). The scope of the domestic review in Vilvarajah, which concerned immigration, was relatively broad because of the importance domestic law attached to the matter of physical integrity. It was on this basis that judicial review was held to comply with the requirements of Article 13. In contrast, in Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, §§ 135-39, ECHR 1999-VI), the Court concluded that judicial review was not an effective remedy on the ground that the domestic courts defined policy issues so broadly that it was not possible for the applicants to make their Convention points regarding their rights under Article 8 in the domestic courts. 141. The Court observes that judicial review proceedings were capable of establishing that the 1993 Scheme was unlawful because the gap between government policy and practice was too wide (see R. v. Secretary of State for Transport, ex parte Richmond LBC (no. 2) [1995] Environmental Law Reports 390). However, it is clear, as noted by the Chamber, that the scope of review by the domestic courts was limited to the classic English public-law concepts, such as irrationality, unlawfulness and patent unreasonableness, and did not at the time (that is, prior to the entry into force of the Human Rights Act 1998) allow consideration of whether the claimed increase in night flights under the 1993 Scheme represented a justifiable limitation on the right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow Airport. 142. In these circumstances, the Court considers that the scope of review by the domestic courts in the present case was not sufficient to comply with Article 13. There has therefore been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 143. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 144. The applicants, referring to the Chamber's judgment, considered that a modest award should be made in relation to non-pecuniary damage. 145. The Government took the view that a finding of a violation would constitute in itself sufficient just satisfaction in respect of a violation of either Article 8 or Article 13. 146. The Chamber awarded the applicants the sum of 4,000 pounds sterling (GBP) each for non-pecuniary damage in respect of the violations it found of Articles 8 and 13. 147. The Court has found a violation of the procedural right to an effective domestic remedy under Article 13 of the Convention in respect of the applicants' complaints under Article 8, but no violation of the substantive right to respect for private life, family life, home and correspondence under Article 8 itself. 148. The Court notes that in Camenzind v. Switzerland (judgment of 16 December 1997, Reports 1997-VIII, pp. 2897-98, § 57) the Court found a violation of Article 13 in relation to the applicant's claim under Article 8, but no substantive violation of the Convention. In that case the Court considered that the judgment constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage. Furthermore, in the present case, the violation of Article 13 derived, not from the applicants' lack of any access to the British courts to challenge the impact on them of the State's policy on night flights at Heathrow Airport, but rather from the overly narrow scope of judicial review at the time, which meant that the remedy available under British law was not an “effective” one enabling them to ventilate fully the substance of their complaint under Article 8 of the Convention (see paragraphs 140-42 above). This being so, the Court considers that, having regard to the nature of the violation found, the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage. B. Costs and expenses 149. The applicants claimed a total of GBP 153,867.56 plus GBP 24,929.55 value-added tax (VAT) in respect of the costs before the Chamber, and an additional GBP 154,941.48 plus GBP 23,976.82 VAT (totalling GBP 178,918.30) before the Grand Chamber. 150. The Government made a number of comments on the costs and expenses before the Grand Chamber. They challenged the rates charged by the solicitors involved, and considered that the time billed by the solicitors was excessive. They also considered that the fees charged by counsel and the applicants' experts were excessive. Overall, they suggested GBP 109,000 as an appropriate figure for the Grand Chamber costs and expenses. 151. The Chamber reduced the costs and expenses claimed by the applicants in the proceedings up to then from GBP 153,867.56 to GBP 70,000. 152. Costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum (see The Sunday Times v. the United Kingdom (no. 1) (Article 50), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). 153. The Court notes that whilst the Chamber found a violation of both Articles 8 and 13 of the Convention, the Grand Chamber has found solely a violation of Article 13 in relation to the applicants' claim under Article 8. Whilst this difference between the findings should be reflected in the award of costs, the Grand Chamber should not lose sight of the fact that Article 13 cannot stand alone. Without an “arguable claim” in respect of the substantive issues, the Court would have been unable to consider Article 13 (see, for example, Boyle and Rice, cited above, pp. 23-24, §§ 52 and 54). The award of costs should therefore reflect the work undertaken by the applicants' representatives on the Article 8 issues to a certain extent, even if not to the same extent as if a violation of Article 8 had also been found. 154. The Court awards the applicants the sum of 50,000 euros, including VAT, in respect of costs and expenses. C. Default interest 155. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In this case the Court observed that the State’s responsibility in environmental cases may also arise from a failure to regulate private industry in a manner securing proper respect for the rights enshrined in Article 8 of the Convention. However, departing from the Chamber’s approach4, the Grand Chamber held that there had been no violation of Article 8 of the Convention, finding in particular that the United Kingdom had not overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole. While the Court could not reach a conclusion about whether the 1993 policy on night flights at Heathrow airport had actually led to an increase in night noise, it found that there was an economic interest in maintaining a full service of night flights, that only a small percentage of people had suffered by the noise, that the housing prices had not dropped, and that the applicants could move elsewhere without financial loss. As further regards the question whether the applicants had had a remedy at national level to enforce their Convention rights, the Court held that there had been a violation of Article 13 (right to an effective remedy) of the Convention. It was indeed clear that the scope of review by the domestic courts had been limited at the material time to examining whether the authorities had acted irrationally, unlawfully or manifestly unreasonably (classic English public-law concepts) and, prior to the entry into force of the Human Rights Act 1998, the courts had not been able to consider whether the claimed increase in night flights represented a justifiable limitation on the right to respect for the private and family lives or the homes of those who lived near Heathrow Airport. |
1,074 | Right to respect for private and family life, home and correspondence (Article 8 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Provisions of the German Constitution (“the Basic Law ”) 25. Article 13 of the Basic Law guarantees the inviolability of a person ’ s home. The relevant part reads: Article 13 of the Basic Law “(1) The home is inviolable. (2) Searches may be authorised only by a judge or, when time is of the essence, by other authorities designated by the laws, and may be carried out only in the manner therein prescribed. ... ” B. Provisions of the Code of Criminal Procedure 26. The rules and safeguards relating to the search of a person ’ s home and the seizure of objects found during the search are regulated by Articles 102 to 108 of the Code of Criminal Procedure, the relevant parts of which read: Article 102 “A body search, a search of the property or of the private or other premises of a person who, as a perpetrator or as an instigator or accessory before the fact, is suspected of committing a criminal offence, or is suspected of being an accessory after the fact or of obstructing justice or of handling stolen goods, may be made for the purpose of his arrest, as well as in cases where it can be presumed that the search will lead to the discovery of evidence.” Article 105 “(1) Searches may be ordered only by a judge or, in exigent circumstances, also by the public prosecutor ’ s office and the officials assisting it. ... ” C. Rules and practice on the admissibility of evidence 27. The German Code of Criminal Procedure does not contain general rules about the admissibility of evidence, apart from Article 136a, which provides that confessions obtained by torture, inhuman or degrading treatment or unlawful coercion must not be used as evidence against the defendant. 28. However, according to the well-established case-law of the Federal Constitutional Court (see, inter alia, file nos. 2 BvR 2017/94 and 2 BvR 2039/94 of 1 March 2000, and no. 2 BvR 784/08 of 28 July 2008) and the Federal Court of Justice (see, inter alia, no. 5 StR 190/91 of 27 February 1992), other than the prohibition contained in Article 136a, there is no absolute rule that evidence which has been acquired in violation of procedural rules cannot be used in criminal proceedings ( Beweisverwertungsverbot ). Generally, the courts have to consider all available evidence in order to ascertain objectively whether a defendant is guilty or not, as a State cannot function if it does not guarantee that perpetrators will be prosecuted and convicted (see Federal Constitutional Court, no. 2 BvL 7/71 of 19 July 1972). The prohibition on the use of evidence therefore has to remain an exception (see Federal Court of Justice, no. 3 StR 181/98 of 11 November 1998). Such a prohibition is, however, imperative in the case of a serious, deliberate or arbitrary breach of procedural rules which has systematically ignored constitutional safeguards. Such a prohibition is also imperative where evidence has been obtained in violation of constitutional rights which affect the core of private life (see, inter alia, Federal Constitutional Court, no. 2 BvR 1027/02 of 12 April 2005 ). Whether there is a prohibition on the use of evidence cannot be decided in a general way, but has to be determined on a case-by-case basis. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 29. The applicants complained that the search of their residential premises had violated Article 8 of the Convention, as the search warrant had been based on evidence which had been obtained in breach of international and domestic law. Article 8 of the Convention reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 30. The Government contested that argument. A. Admissibility 31. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Whether there was an interference 32. It is common ground between the parties that the search complained of amounted to an interference with the applicants ’ right to respect for their home, and the Court sees no reason to hold otherwise. 2. Whether the interference was justified 33. Accordingly, it has to be determined whether the interference was justified under paragraph 2 of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question. (a) “In accordance with the law” 34. As to the question of whether the measure was in accordance with the law, the Court ’ s case-law has established that a measure must have some basis in domestic law, with the term “law” being understood in its “substantive” sense, not its “formal” one. In a sphere covered by statutory law, the “law” is the enactment in force as the competent courts have interpreted it (see Robathin v. Austria, no. 30457/06, § 40, 3 July 2012). Domestic law must further be compatible with the rule of law and accessible to the person concerned, and the person affected must be able to foresee the consequences of the domestic law for him (see, among many other authorities, Robathin, cited above, § 40; and Kennedy v. the United Kingdom, no. 26839/05, § 151, 18 May 2010 ). 35. In the present case, the Court notes that the search of the applicants ’ premises was based on the relevant provisions of the German Code of Criminal Procedure, namely Articles 102 and 105 of the Code of Criminal Procedure (see paragraph 2 6 above). As regards the foreseeability of their application in the present case, the Court takes note of the settled case-law of the Federal Constitutional Court according to which there was no absolute rule that evidence which had been acquired in violation of procedural rules could not be used in criminal proceedings (see paragraph 2 8 above). In these circumstances the Court finds that the applicants were able to foresee ‒ if necessary with the aid of legal advice ‒ that the domestic authorities would consider that the search warrant could be based on the Liechtenstein data despite the fact that they may have been acquired in breach of law. The Court therefore considers that the measure complained of was “in accordance with the law”. (b) Whether the interference pursued a legitimate aim 36. The Court further observes that the search in issue was ordered in the context of criminal investigations on suspicion of tax evasion initiated following the purchase of a Liechtenstein data carrier. It therefore served a legitimate aim, namely the prevention of crime (compare Camenzind v. Switzerland, 16 December 1997, § 40, Reports of Judgments and Decisions 1997 ‑ VIII). (c) Whether the interference was “necessary in a democratic society” (i) The parties ’ submissions 37. The applicants argued that their right to respect for their home had been infringed, as the search warrant had been based on evidence that had been acquired in violation of German domestic and international law. The data purchase from K. had constituted a criminal act. Moreover, the secret service had no authority under German law to purchase such data. 38. The infringement of German domestic law had been so severe that the Liechtenstein data could not have been used to justify the search warrant. Therefore, the interference with their right to respect for their home had not been proportionate to the aim pursued. Furthermore, the house search had been excessive, as it had even included an examination of their will. 39. The Government submitted that the search warrant had been in compliance with the second paragraph of Article 8 of the Convention. The decision to carry out a search had been based on a reasonable suspicion that the applicants might have committed tax evasion between 2002 and 2006. Moreover, the search warrant had been subjected to prior judicial control and contained reasons justifying its issuance. Accordingly, the applicants had enjoyed sufficient safeguards against abuse. 40. The Government pointed out that the Regional Court ’ s decision had balanced the applicants ’ right to respect for their home with the public interest in criminal prosecution. It had even assumed that the acquisition of the Liechtenstein data had been by way of a criminal act, but had held that this could justify a search warrant whose objective in investigative proceedings was to find additional evidence in order to secure an effective criminal prosecution. 41. It emerged from the Government ’ s submissions including the enclosed documents that the data set in question was the first set of tax data acquired by German authorities. Furthermore, the above- mentioned decisions of the Bochum Regional Court were among the first decisions with regard to the question whether unlawfully obtained data could serve as the basis of a search warrant. (ii) The Court ’ s assessment 42. In accordance with the Court ’ s established case-law, the notion of “necessity” implies that an interference corresponds to a pressing social need and, in particular, is proportionate to the legitimate aim pursued. In determining whether an interference is “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the Contracting States (see Keegan v. the United Kingdom, no. 28867/03, § 31, ECHR 2006 ‑ X ). However, the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly, and the need for them in a given case must be convincingly established (see Mastepan v. Russia, no. 3708/03, § 40, 14 January 2010, with further references; Smirnov v. Russia, no. 71362/01, § 43, 7 June 2007; and Miailhe v. France (no. 1), 25 February 1993, § 36, Series A no. 256 ‑ C ). 43. As regards searches of premises and seizures in particular, the Court has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences (see Vasylchuk v. Ukraine, no. 24402/07, § 79, 13 June 2013 ). The Court will assess whether the reasons put forward to justify such measures were relevant and sufficient, and whether the aforementioned proportionality principle has been adhered to (see Smirnov, cited above, § 44 ). 44. As regards the latter point, the Court must first ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse ( see Société Colas Est and Others v. France, no. 37971/97, § 48, ECHR 2002 ‑ III, and Funke v. France, 25 February 1993, § 56, Series A no. 256 ‑ A ). Secondly, the Court must consider the specific circumstances of each case in order to determine whether, in the particular case, the interference in question was proportionate to the aim pursued. The criteria the Court has taken into consideration in determining this latter issue are, inter alia : the severity of the offence in connection with which the search and seizure were effected; the manner and circumstances in which the order was issued, in particular whether any further evidence was available at that time; the content and scope of the order, having particular regard to the nature of the premises searched and the safeguards implemented in order to confine the impact of the measure to reasonable bounds; and the extent of possible repercussions on the reputation of the person affected by the search (see Buck v. Germany, no. 41604/98, § 45, ECHR 2005 ‑ IV, and Smirnov, cited above, § 44 ). 45. With regard to the safeguards against abuse provided by German legislation and established practice in cases involving searches like the one in the present case, the Court notes that such measures may, except in exigent circumstances, only be ordered by a judge under the limited conditions set out in the Code of Criminal Procedure (see paragraph 26 above). However, whilst a highly relevant consideration, the fact that an application for a warrant has been subject to judicial scrutiny will not in itself necessarily amount to a sufficient safeguard against abuse. Rather, the Court must examine the particular circumstances and evaluate whether the legal framework and the limits on the powers exercised were an adequate protection against arbitrary interference by the authorities (see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January 2004). 46. The Court observes that, according to Article 102 of the Code of Criminal Procedure, a search of a property is dependent on reasonable grounds for suspecting that a person has committed an offence and the presumption that the search will lead to the discovery of evidence (see paragraph 2 6 above). Furthermore, the person concerned may also challenge the legality of a search warrant in cases where the order has already been executed (compare Buck, cited above, § 46). The Court notes lastly that, under the settled domestic case-law, even though there is no absolute rule that evidence which has been acquired in violation of procedural rules cannot be used in criminal proceedings, the Federal Constitutional Court held that the use of evidence was prohibited in cases of a serious, deliberate or arbitrary breach of procedural rules which systematically ignored constitutional safeguards (see paragraph 2 8 above). 47. In the present case, the applicants made a complaint to the Bochum District Court, which was called upon to review the lawfulness of the search warrant. After the Bochum District Court dismissed the complaint, the Bochum Regional Court also reviewed the lawfulness of the search warrant ( see paragraphs 1 3 and 1 4 above). The Court further notes that the Regional Court not only assessed whether the search warrant complied with the domestic provisions, but also whether the taking of the Liechtenstein data as basis for the search warrant complied with the settled case-law of the Federal Constitutional Court with regard to the use of evidence in criminal proceedings. Thus the safeguards provided for by German legislation and jurisprudence against abuse in the sphere of searches in general can be considered both adequate and effective and to have been complied with in the instant case. 48. As to the proportionality of the search warrant to the legitimate aim pursued in the particular circumstances of the case, the Court, having regard to the relevant criteria established in its case-law, observes in the first place that the offence in respect of which the search warrant was issued was tax evasion, an offence which affects State ’ resources and their capacity to act in the collective interest. As such, tax evasion constitutes a serious offence; a fact underlined in a case such as this where the suspected tax evasion related to the sum of approximately EUR 100,000 (see, in this regard, the OECD Convention on Mutual Administrative Assistance in Tax Matters, developed in 1988 and amended in 2010, according to which the tackling of tax evasion forms a top priority for all member states). Furthermore, in this field - the prevention of capital outflows and tax evasion - States encounter serious difficulties owing to the scale and complexity of banking systems and financial channels and the immense scope for international investment, made all the easier by the relative porousness of national borders (compare Cremieux v. France, no. 11471/85, § 39, 25 February 1993; and Funke, cited above, § 56). 49. With regard to the manner and the circumstances in which the order was issued, the Court observes that the search was ordered to find further evidence. Furthermore, the Liechtenstein data were the only evidence available at the relevant time that suggested that the applicants might have evaded paying tax. The search warrant therefore appears to have been the only means of establishing whether the applicants were in fact liable for tax evasion (contrast Buck, cited above, § 49). It is the gist of the applicants ’ complaint, in this context, that the search warrant had been based on evidence which had been obtained by a flagrant breach of international and domestic law and which, therefore, should have been excluded as a basis for the warrant (see paragraphs 3 7 and 38 above). 50. The Court notes in this respect that the Federal Constitutional Court did not find it necessary to decide whether the data carrier had been obtained in breach of international and domestic law, as the Regional Court had based its decision on, what was, for the applicants, the best possible assumption, namely that the evidence might in fact have been acquired unlawfully. Consequently, this Court finds it unnecessary to determine this issue in the present case, but will operate on the same assumption. 51. The Court attaches particular weight to the fact that it is uncontested that, at the time the search warrant was issued, few, if any, relevant data sets other than the one at issue had been purchased by German authorities, and only a few sets of criminal proceedings relying on unlawfully obtained tax data as an evidential basis had been instigated (compare paragraph 41 above). Furthermore, these sets of criminal proceedings had been instigated on the basis of the present data set (see paragraph 14 above). Thus, no material submitted by the parties indicates that, at the relevant time, the domestic tax authorities were purposely acting in the light of any established domestic case-law confirming that unlawfully obtained tax data could be used to justify a search warrant. Neither does the fact alone that, according to the well-established case-law of the Federal Constitutional Court (see paragraph 28 above), there is no absolute rule that evidence which has been acquired in violation of the procedural rules cannot be used in criminal proceedings, imply that the authorities purposely obtained the data in breach of international or domestic law. 52. Moreover, nothing in the material before the Court indicates that the German authorities, at the relevant time, deliberately and systematically breached domestic and international law in order to obtain information relevant to the prosecution of tax crimes. The Federal Constitutional Court ’ s findings in so far (see paragraph 23 above) have not been contested by the applicants. 53. The Court further notes that any offence which the German authorities might have committed in purchasing the data carrier from K. would have consisted of acting as an accessory to a criminal offence and acting as an accessory to the divulgence of official secrets, and that K. might have committed the offence of industrial espionage (compare paragraph 13 above). Therefore, the German authorities, in issuing the search warrant, did not rely on real evidence obtained as a direct result of a breach of one of the core rights of the Convention. Moreover, the data carrier contained information concerning the financial situation of the applicants, which they were obliged to submit to the domestic tax authorities, but no data closely linked to their identity (compare G.S.B. v. Switzerland, no. 28601/11, § 93, 22 December 2015). 54. Considering the content and scope of the search warrant, the Court notes that it named the grounds on which it was based, namely that the applicants were suspected of having made financial investments in Liechtenstein for which they were liable for tax in Germany, but failed to declare about EUR 50,000 of yearly interest in their tax returns for the years 2002 to 2006. Furthermore, the search warrant stated that the house search was urgently needed in order to find further evidence (see paragraph 7 above). As regards the scope of the warrant, the Court observes that it allowed the seizure of papers and other documents concerning the applicants ’ capital, both inside and outside Germany, especially documents concerning information on foundations and any documents that could help to determine the true tax liability of the applicants since 2002. The Court considers therefore that the search warrant was quite specific in its content and scope, containing an explicit and detailed reference to the tax evasion offence being investigated, with an indication of the items sought as evidence (contrast Roemen and Schmit v. Luxembourg, no. 51772/99, § 70, ECHR 2003 ‑ IV; and Robathin, cited above, § 47). Thus, nothing indicates that the warrant was not limited to what was indispensable in the circumstances of the case. 55. With regard to the scope of the search warrant the Court further takes note of the applicants ’ allegation that the search covered the examination of their will. The Court attaches weight to the fact that, although a document of a very private nature, a will may contain information about property value. As the investigating officer did not seize the applicants ’ will, but only one envelope with L. Bank documents and five computer files (see paragraph 9 above), the Court considers that the mere inspection of the will did not impinge on the applicants ’ private sphere to an extent that was disproportionate (contrast Smirnov, cited above, § 48). 56. Lastly, having regard to possible repercussions on the reputation of the person affected, the Court observes that, in the present case, the applicants did not allege any adverse effect on their personal reputation as a consequence of the executed search of their private premises. 57. Taking into account that a margin of appreciation is left to the Contracting States in respect of domestic law and practice regulating the conditions under which residential premises may be searched (see paragraph 4 2 above), the domestic courts cannot be said to have overstepped their margin of appreciation, in particular, in basing the search warrant on the Liechtenstein data and considering the interference with the applicants ’ right to their home proportionate to the legitimate aim pursued. The interference with the applicants ’ rights under Article 8 of the Convention was thus necessary in a democratic society. 58. Accordingly, there has been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 59. The applicants further complained under Article 6 of the Convention that their right to equality of arms had been infringed during the impugned proceedings in which they had challenged the house search, as they had been denied access to information concerning the role of the secret service, the protocols of K. ’ s hearings and the original data-carrier. 60. The applicants also complained that their right to be heard had been infringed, as the domestic courts had not considered all the arguments put forward with regard to the breach of international law and the right of the secret service to pass on the data to the prosecution. 61. Furthermore, there were many indications that the German authorities played an active role in the purchase of the Liechtenstein data and that K. had been incited by the German secret service. 62. However, in the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of Article 6 of the Convention. 63. It follows that this part of the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for the home) of the Convention. It found in particular that the search had been carried out in accordance with the law. It further noted the settled case-law of the German Federal Constitutional Court according to which there was no absolute rule that evidence which had been acquired in violation of procedural rules could not be used in criminal proceedings. That meant that the couple had been able to foresee – if necessary with the aid of legal advice – that the domestic authorities would consider basing the search warrant on the Liechtenstein data despite the fact that that information might have been acquired in breach of the law. Furthermore, the Court found that the search had been proportionate: firstly, because German legislation and jurisprudence in the sphere of searches provided adequate and effective safeguards against abuse in general and had done so in the circumstances of this particular case; secondly, because tax evasion constituted a serious offence; thirdly, because nothing indicated that the German authorities had deliberately and systematically breached domestic and international law in order to obtain information for the prosecution of tax crimes; fourthly, because the warrant had been explicit and detailed as concerned both the offence being investigated as well as the items sought as evidence; and, lastly, because the couple had not alleged any repercussions on their personal reputation as a consequence of the search of their home. |
842 | null | THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 41. The applicants complained about the interception of their communications, contrary to Article 8 of the Convention : “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties ’ submissions 1. The applicants 42. The applicants complained that, between 1990 and 1997, telephone, facsimile, e-mail and data communications between them were intercepted by the Capenhurst facility, including legally privileged and confidential material. 43. Through the statements of Mr Duncan Campbell, a telecommunications expert, they alleged that the process applying to external warrants under section 3(2) of the 1985 Act embodied five stages. First, a warrant would be issued, specifying an external communications link or links to be physically intercepted. Such warrants covered very broad classes of communications, for example, “all commercial submarine cables having one terminal in the UK and carrying external commercial communications to Europe ”. All communications falling within the specified category would be physically intercepted. Secondly, the Secretary of State would issue a certificate, describing the categories of information which could be extracted from the total volume of communications intercepted under a particular warrant. Certificates were formulated in general terms, and related only to intelligence tasks and priorities; they did not identify specific targets or addresses. They did not need to be more specific than the broad classes of information specified in the 1985 Act, for example, “national security”, “preventing or detecting serious crime” or “safeguarding the economic well-being of the United Kingdom ”. The combination of a certificate and a warrant formed a “certified warrant”. The third stage in the process was filtering. An automated sorting system or search engine, operating under human control, selected communications containing specific search terms or combinations thereof. The search terms would relate to one or more of the certificates issued for the relevant intercepted communications link. Search terms could also be described as “keyword lists”, “technical databases” or “The Dictionary”. Search terms and filtering criteria were not specified in certificates, but were selected and administered by State officials without reference to judicial officials or ministers. Fourth, a system of rules was in place to promote the “minimisation” of the interference with privacy, namely how to review communications intelligence reports and remove names or material identifying citizens or entities whose details might incidentally have been included in raw material which had otherwise been lawfully intercepted and processed. Where the inclusion of such details in the final report was not proportionate or necessary for the lawful purpose of the warranted interception, it would be removed. The fifth and final stage in the process was “dissemination”. Information obtained by an interference with the privacy of communications could be disseminated only where the recipients ’ purpose(s) in receiving the information was proportionate and necessary in the circumstances. Controls on the dissemination formed a necessary part of Article 8 safeguards. 44. The applicants contended that since the section 3(2) procedure permitted the interception of all communications falling within the large category set out in each warrant, the only protection afforded to those whose communications were intercepted was that the Secretary of State, under section 6(1) of the Act, had to “make such arrangements as he considers necessary for the purpose of securing that ... so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person” unless the requirements of section 6(2) were met. However, the precise nature of these “arrangements” were not, at the relevant time, made known to the public, nor was there any procedure available to permit an individual to satisfy him or herself that the “arrangements” had been followed. The Tribunal did not have jurisdiction to examine such compliance, and although the Commissioner was authorised under section 8 to review the adequacy of the “arrangements” in general, he had no power to review whether they had been met in an individual case. 45. It was plain that the alleged interception of communications constituted an interference with the applicants ’ rights under Article 8 § 1. Any such interception, to comply with Article 8 § 2, had to be “in accordance with the law”, and thus have a basis in domestic law that was adequately accessible and formulated with sufficient precision as to be foreseeable. They contended that the United Kingdom legislation breached the requirements of foreseeability. They submitted that it would not compromise national security to describe the arrangements in place for filtering and disseminating intercepted material, and that detailed information about similar systems had been published by a number of other democratic countries, such as the United States of America, Australia, New Zealand, Canada and Germany. The deficiencies in the English system were highlighted by the Court ’ s decision in Weber and Saravia v. Germany (dec.), no. 54934/00, 29 June 2006, which noted that the German legislation set out on its face detailed provisions regulating, inter alia, the way in which individual communications were to be selected from the pool of material derived from “strategic interception”; disclosure of selected material amongst the various agencies of the German State and the use that each could properly make of the material; and the retention or destruction of the material. The authorities ’ discretion was further regulated and constrained by the public rulings of the Federal Constitutional Court on the compatibility of the provisions with the Constitution. In contrast, in the United Kingdom at the relevant time no provision was made on the face of the statute for any part of the processes following the initial interception, other than the duty on the Secretary of State to make unspecified “arrangements”. The arrangements themselves were unpublished. There was no legal material in the public domain indicating how the authorities ’ powers to select, disclose, use or retain particular communications were regulated. The authorities ’ conduct was not “in accordance with the law” because it was unsupported by any predictable legal basis satisfying the accessibility principle. 46. In addition, the applicants denied that the interferences pursued a legitimate aim or were proportionate to any such aim, since the 1985 Act permitted interception of large classes of communications for any purpose, and it was only subsequently that this material was sifted to determine whether it fell within the scope of a section 3(2) warrant. 2. The Government 47. For security reasons, the Government adopted a general policy of neither confirming nor denying allegations made in respect of surveillance activities. For the purposes of this application, however, they were content for the Court to proceed on the hypothetical basis that the applicants could rightly claim that communications sent to or from their offices were intercepted at the Capenhurst ETF during the relevant period. Indeed, they submitted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had such a communication physically intercepted under a section 3(2) warrant. However, the Government emphatically denied that any interception was being conducted without the necessary warrants and it was their position that, if interception of the applicants ’ communications did occur, it would have been lawfully sanctioned by an appropriate warrant under section 3(2) of the 1985 Act. 48. The Government annexed to their first set of Observations, dated 28 November 2002, a statement by Mr Stephen Boys Smith, a senior Home Office official, in which it was claimed: “ ... Disclosure of the arrangements would reveal important information about the methods of interception used. It is for this reason that the Government is unable to disclose the full detail of the section 6 arrangements for section 3(2) warrants that were in place during the relevant period. The methods to which the relevant documents relate for the relevant period remain a central part of the methods which continue to be used. Therefore, disclosure of the arrangements, the Government assesses and I believe, would be contrary to the interests of national security. It would enable individuals to adapt their conduct so as to minimise the effectiveness of any interception methods which it might be thought necessary to apply to them. Further, the manuals and instructions setting out the section 6 safeguards and arrangements are in large part not in a form which would be illuminating or readily comprehensible to anyone who had not also undergone the training I have referred to above or had the benefit of detailed explanations. They are couched in technical language and refer to specific techniques and processes which cannot be understood simply from the face of the documents. They contain detailed instructions, precisely in order to ensure that the section 6 arrangements and section 3(2) requirements were fully understood by staff and were fully effective. Any explanations given by the Government of those techniques and processes would compound the problem, referred to above, of undermining the operational effectiveness of the system and techniques used under the authority of warrants.” The Government stressed, however, that the detailed arrangements were the subject of independent review by the successive Commissioners, who reported that they operated as robust safeguards for individuals ’ rights (see paragraphs 31-33 above). 49. The Government annexed to their Further Observations, dated 23 May 2003, a second statement by Mr Boys Smith, in response to Mr Campbell ’ s statement (see paragraph 4 8 above), which provided more detail, to the extent that was possible without undermining national security, about the “arrangements” made by the Secretary of State under section 6 of the Act. The Government submitted that the Court should proceed on the basis that, in the absence of evidence to the contrary, in the democratic society of the United Kingdom, the relevant ministers, officials and Commissioners properly discharged their statutory duties to ensure that safeguards were in place to comply with all the requirements of section 6. Moreover Mr Boys Smith ’ s statement showed that during the relevant period there was a range of safeguards in place to ensure that the process of selection of material for examination (the stage referred to by the applicants as “filtering”) could be carried out only strictly in accordance with the statutory framework and the terms of the warrant and the certificate (that is, could be carried out only when necessary in the interests of national security, for the purpose of preventing or detecting serious crime or for the purpose of safeguarding the economic well-being of the United Kingdom), and could not be abused or operated arbitrarily. 50. According to Mr Boys Smith, all persons involved in the selection process would have had their attention specifically drawn to the safeguards and limits set out in the primary legislation, which were rigorously applied. Secondly, training was provided to all these persons to emphasise the importance of strict adherence to the operating procedures and safeguards in place. Thirdly, throughout the relevant period operating procedures were in place to ensure that it was not possible for any single individual to select and examine material on an arbitrary and uncontrolled basis. Where, as part of his intelligence gathering, an official wished to intercept and select relevant information, he could not effect the interception himself. He would have to take the request for interception and selection to personnel in a different branch of the department, who would then separately activate the technical processes necessary for the interception and selection to be made. The requesting official would have to set out, in his request, his justification for the selection. Moreover, a record of the request was kept, so that it was possible for others (senior management and the Commissioner) to check back on the official ’ s request, to ensure that it was properly justified. Conversely, it was not possible for the personnel in the branch of the department implementing the technical interception processes to receive the downloaded product of any interception and selection process implemented by them. Therefore, they also could not conduct unauthorised interception and gain access to material themselves. Fourth, there was day-to-day practical supervision of those who conducted the selection processes under section 3(2) warrants (“the requesting officials”) by managers working physically in the same room, who could and would where necessary ask the requesting officials at any time to explain and justify what they were doing. The managers also performed quality control functions in relation to the intelligence reports generated by the requesting officials, and routinely reviewed all intelligence reports incorporating intercepted material that were drawn up by requesting officials for dissemination. Fifth, throughout the relevant period, as was explained to all personnel involved in the selection process, the independent Commissioner had an unrestricted right to review the operation of the selection process and to examine material obtained pursuant to it. From the relevant records, it was possible to check on the interception initiated by officials and, if necessary, to call for an explanation. Each of the Commissioners during the relevant period (Lords Lloyd, Bingham and Nolan) exercised his right to review the operation of the selection processes, and each Commissioner declared himself satisfied that the selection processes were being conducted in a manner that was fully consistent with the provisions of the 1985 Act. By this combination of measures there were effective safeguards in place against any risk of individual, combined or institutional misbehaviour or action contrary to the terms of the legislation or warrant. Finally, once the Intelligence Services Act 1994 had come into force on 15 December 1994, it was possible for an aggrieved individual to complain to the Tribunal. 51. As regards the processes described by the applicants as “minimisation” and “dissemination”, safeguards in place during the relevant period ensured that access to and retention of the raw intercept material and any intelligence reports based on such material were kept to the absolute minimum practicable, having regard to the public interest served by the interception system. Relevant information in the material selected and examined was disseminated in the form of intelligence reports, usually compiled by the requesting officials. As part of the safeguards under section 6 of the 1985 Act, there were throughout the relevant period internal regulations governing the manner in which intelligence reports were produced, directed at all individuals engaged in producing intelligence reports based on material selected from communications intercepted under the section 3(2) warrant regime. The regulations stipulated, among other things, that no information should be reported unless it clearly contributed to a stated intelligence requirement conforming to one of the purposes set out in section 2(2) of the 1985 Act. The regulations also dealt specifically with the circumstances in which it was appropriate to name specific individuals or organisations in the intelligence reports. During the relevant period there was in place a comprehensive security regime for handling all types of classified material. Dissemination was restricted to those with a genuine “need to know”, and was further limited to persons who had been security vetted and briefed on how to handle it, with a view to ensuring continued confidentiality. 52. The Government refuted the suggestion that, to comply with Article 8 § 2, the safeguards put in place in respect of the intercepted material had themselves to comply with the “in accordance with the law” criteria. In any event, the functions of the Commissioner and the Tribunal were embodied in statutory provisions that were sufficiently certain and accessible, and in assessing whether the “foreseeability” requirements of Article 8 § 2 had been met, it was legitimate to take into account the existence of general safeguards against abuse such as these ( the Government relied on Association for European Integration and Human Rights and Ekimzhiev v. Bulgaria, no. 62540/00, § § 7 7 -94, 28 June 2007 and Christie v. the United Kingdom, no. 21482/93, Commission decision of 27 June 1994 ). Moreover, the 1985 Act provided that interception was criminal except where the Secretary of State had issued a warrant and sections 2 and 3(2) set out in very clear terms that, during the relevant period, any person in the United Kingdom who sent or received any form of telecommunication outside Britain could in principle have had it intercepted pursuant to such a warrant. The provisions of primary legislation were, therefore, sufficient to provide reasonable notice to individuals to the degree required in this particular context, and provided adequate protection against arbitrary interference. Article 8 § 2 did not require that the nature of the “arrangements” made by the Secretary of State under section 6 of the 1985 Act be set out in legislation (see Malone v. the United Kingdom, judgment of 2 August 1984, Series A no. 82, § 68), and for security reasons it had not been possible to reveal such information to the public, but the arrangements had been subject to review by the Commissioners, each of whom had found them to be satisfactory (see paragraph 33 above). 53. The Government submitted that the section 3(2) warrant regime was proportionate and “necessary in a democratic society”. Democratic States faced a growing threat from terrorism, and as communications networks became more wide-ranging and sophisticated, terrorist organisations had acquired ever greater scope to operate and co-operate on a trans-national level. It would be a gross dereliction of the Government ’ s duty to safeguard national security and the lives and well-being of its population if it failed to take steps to gather intelligence that might allow preventative action to be taken or if it compromised the operational effectiveness of the surveillance methods available to it. Within the United Kingdom the Government had extensive powers and resources to investigate individuals and organisations that might threaten the interests of national security or perpetrate serious crimes, and it was therefore feasible for the domestic interception regime to require individual addresses to be identified before interception could take place. Outside the jurisdiction, however, the ability of the Government to discover the identity and location of individuals and organisations which might represent a threat to national security was drastically reduced and a broader approach was needed. Maintaining operational effectiveness required not simply that the fact of interception be kept as secret as appropriate; it was also necessary to maintain a degree of secrecy as regards the methods by which such interception might be effected, to prevent the loss of important sources of information. 54. The United Kingdom was not the only signatory to the Convention to make use of a surveillance regime involving the interception of volumes of communications data and the subsequent operation of a process of selection to obtain material for further consideration by government agencies. It was difficult to compare the law and practice of other democratic States (such as the German system of strategic monitoring examined by the Court in the Weber and Saravia case cited above), since each country had in place a different set of safeguards. For example, the United Kingdom did not permit intercepted material to be used in court proceedings, whereas many other States did allow this, and there were few, if any, direct equivalents to the independent Commissioner system created by the 1985 Act. Moreover, it was possible that the operational reach of the United Kingdom ’ s system had had to be more extensive, given the high level of terrorist threat directed at the United Kingdom during the period in question. A. Admissibility 55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Whether there was an interference 56. Telephone, facsimile and e-mail communications are covered by the notions of “ private life” and “ correspondence ” within the meaning of Article 8 (see Weber and Saravia v. Germany (dec.), no. 54934/00, § 77, 29 June 2006, and the cases cited therein). The Court recalls its findings in previous cases to the effect that the mere existence of legislation which allows a system for the secret monitoring of communications entails a threat of surveillance for all those to whom the legislation may be applied. This threat necessarily strikes at freedom of communication between users of the telecommunications services and thereby amounts in itself to an interference with the exercise of the applicants ’ rights under Article 8, irrespective of any measures actually taken against them (see Weber and Saravia, cited above, § 78). 57. The Court notes that the Government are prepared to proceed, for the purposes of the present application, on the basis that the applicants can claim to be victims of an interference with their communications sent to or from their offices in the United Kingdom and Ireland. In any event, under section 3(2) the 1985 Act, the authorities were authorised to capture communications contained within the scope of a warrant issued by the Secretary of State and to listen to and examine communications falling within the terms of a certificate, also issued by the Secretary of State (see paragraphs 23-24 above). Under section 6 of the 1985 Act arrangements had to be made regulating the disclosure, copying and storage of intercepted material (see paragraph 27 above). The Court considers that the existence of these powers, particularly those permitting the examination, use and storage of intercepted communications constituted an interference with the Article 8 rights of the applicants, since they were persons to whom these powers might have been applied (see Weber and Saravia, cited above, §§ 78-79). 2. Whether the interference was justified 58. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see Weber and Saravia, cited above, § 80). 3. Whether the interference was “in accordance with the law” a. General principles 59. The expression “in accordance with the law” under Article 8 § 2 requires, first, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see, among other authorities, Kruslin v. France, judgment of 24 April 1990, Series A no. 176-A, § 27; Huvig v. France, judgment of 24 April 1990, Series A no. 176-B, § 26; Lambert v. France, judgment of 24 August 1998, Reports of Judgments and Decisions 1998-V, § 23; Perry v. the United Kingdom, no. 63737/00, § 45, ECHR 2003-IX; Dumitru Popescu v. Romania (No. 2), no. 71525/01, § 61, 26 April 2007 ). 60. It is not in dispute that the interference in question had a legal basis in sections 1-10 of the 1985 Act (see paragraphs 16- 27 above). The applicants, however, contended that this law was not sufficiently detailed and precise to meet the “foreseeability” requirement of Article 8(2), given in particular that the nature of the “ arrangements” made under section 6(1)(b) was not accessible to the public. The Government responded, relying on paragraph 68 of Malone (cited above), that although the scope of the executive ’ s discretion to carry out surveillance had to be indicated in legislation, “the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law”. 61. The Court observes, first, that the above passage from Malone was itself a reference to Silver and Others, also cited above, § § 88-89. There the Court accepted that administrative Orders and Instructions, which set out the detail of the scheme for screening prisoners ’ letters but did not have the force of law, could be taken into account in assessing whether the criterion of foreseeability was satisfied in the application of the relevant primary and secondary legislation, but only to “the admittedly limited extent to which those concerned were made sufficiently aware of their contents”. It was only on this basis – that the content of the Orders and Instructions were made known to the prisoners – that the Court was able to reject the applicants ’ contention that the conditions and procedures governing interferences with correspondence, and in particular the directives set out in the Orders and Instructions, should be contained in the substantive law itself. 62. More recently, in its admissibility decision in Weber and Saravia, cited above, §§ 93-95, the Court summarised its case-law on the requirement of legal “ foreseeability ” in this field as follows (and see also Association for European Integration and Human Rights and Ekimzhiev, cited above, §§ 75-77) : “93. .... foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly (see, inter alia, Leander [ v. Sweden, judgment of 26 August 1987, Series A no. 116], p. 23, § 51). However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident (see, inter alia, Malone, cited above, p. 32, § 67; Huvig, cited above, pp. 54-55, § 29; and Rotaru [ v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V] ). It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated (see Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II, pp. 542-43, § 72, and Valenzuela Contreras v. Spain, judgment of 30 July 1998, Reports 1998-V, pp. 1924-25, § 46). The domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Malone, ibid.; Kopp, cited above, p. 541, § 64; Huvig, cited above, pp. 54-55, § 29; and Valenzuela Contreras, ibid.). 94. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, pp. 32-33, § 68; Leander, cited above, p. 23, § 51; and Huvig, cited above, pp. 54-55, § 29). 95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above, p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, pp. 1924-25, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).” 63. It is true that the above requirements were first developed by the Court in connection with measures of surveillance targeted at specific individuals or addresses (the equivalent, within the United Kingdom, of the section 3(1) regime). However, the Weber and Saravia case was itself concerned with generalised “strategic monitoring”, rather than the monitoring of individuals ( cited above, § 18). The Court does not consider that there is any ground to apply different principles concerning the accessibility and clarity of the rules governing the interception of individual communications, on the one hand, and more general programmes of surveillance, on the other. The Court ’ s approach to the foreseeability requirement in this field has, therefore, evolved since the Commission considered the United Kingdom ’ s surveillance scheme in its above-cited decision in Christie v. the United Kingdom. b. Application of the general principles to the present case 64. The Court recalls that section 3(2) of the 1985 Act allowed the executive an extremely broad discretion in respect of the interception of communications passing between the United Kingdom and an external receiver, namely to intercept “such external communications as are described in the warrant”. There was no limit to the type of external communications which could be included in a section 3(2) warrant. According to the applicants, warrants covered very broad classes of communications, for example, “all commercial submarine cables having one terminal in the UK and carrying external commercial communications to Europe ”, and all communications falling within the specified category would be physically intercepted (see paragraph 43 above). In their observations to the Court, the Government accepted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had such a communication intercepted under a section 3(2) warrant (see paragraph 47 above). The legal discretion granted to the executive for the physical capture of external communications was, therefore, virtually unfettered. 65. Moreover, the 1985 Act also conferred a wide discretion on the State authorities as regards which communications, out of the total volume of those physically captured, were listened to or read. At the time of issuing a section 3(2) interception warrant, the Secretary of State was required to issue a certificate containing a description of the intercepted material which he considered should be examined. Again, according to the applicants, certificates were formulated in general terms and related only to intelligence tasks and priorities, such as, for example, “national security”, “preventing or detecting serious crime” or “safeguarding the economic well-being of the United Kingdom ” (see paragraph 43 above). On the face of the 1985 Act, only external communications emanating from a particular address in the United Kingdom could not be included in a certificate for examination unless the Secretary of State considered it necessary for the prevention or detection of acts of terrorism (see paragraphs 23-24 above). Otherwise, the legislation provided that material could be contained in a certificate, and thus listened to or read, if the Secretary of State considered this was required in the interests of national security, the prevention of serious crime or the protection of the United Kingdom ’ s economy. 66. Under section 6 of the 1985 Act, the Secretary of State, when issuing a warrant for the interception of external communications, was called upon to “make such arrangements as he consider[ed] necessary” to ensure that material not covered by the certificate was not examined and that material that was certified as requiring examination was disclosed and reproduced only to the extent necessary. The applicants contend that material was selected for examination by an electronic search engine, and that search terms, falling within the broad categories covered by the certificates, were selected and operated by officials (see paragraph 43 above). According to the Government (see paragraphs 48-51 above), there were at the relevant time internal regulations, manuals and instructions applying to the processes of selection for examination, dissemination and storage of intercepted material, which provided a safeguard against abuse of power. The Court observes, however, that details of these “arrangements” made under section 6 were not contained in legislation or otherwise made available to the public. 67. The fact that the Commissioner in his annual reports concluded that the Secretary of State ’ s “arrangements” had been complied with (see paragraphs 32-33 above), while an important safeguard against abuse of power, did not contribute towards the accessibility and clarity of the scheme, since he was not able to reveal what the “arrangements” were. In this connection the Court recalls its above case-law to the effect that the procedures to be followed for examining, using and storing intercepted material, inter alia, should be set out in a form which is open to public scrutiny and knowledge. 68. The Court notes the Government ’ s concern that the publication of information regarding the arrangements made by the Secretary of State for the examination, use, storage, communication and destruction of intercepted material during the period in question might have damaged the efficacy of the intelligence-gathering system or given rise to a security risk. However, it observes that the German authorities considered it safe to include in the G10 Act, as examined in Weber and Saravia (cited above), express provisions about the treatment of material derived from strategic interception as applied to non-German telephone connections. In particular, the G10 Act stated that the Federal Intelligence Service was authorised to carry out monitoring of communications only with the aid of search terms which served, and were suitable for, the investigation of the dangers described in the monitoring order and which search terms had to be listed in the monitoring order (op. cit., § 32). Moreover, the rules on storing and destroying data obtained through strategic monitoring were set out in detail in section 3(6) and (7) and section 7(4) of the amended G10 Act (see Weber and Saravia, cited above, § 100). The authorities storing the data had to verify every six months whether those data were still necessary to achieve the purposes for which they had been obtained by or transmitted to them. If that was not the case, they had to be destroyed and deleted from the files or, at the very least, access to them had to be blocked; the destruction had to be recorded in minutes and, in the cases envisaged in section 3(6) and section 7(4), had to be supervised by a staff member qualified to hold judicial office. The G10 Act further set out detailed provisions governing the transmission, retention and use of data obtained through the interception of external communications (op. cit., §§ 33-50). In the United Kingdom, extensive extracts from the Code of Practice issued under section 71 of the 2000 Act are now in the public domain (see paragraph 40 above), which suggests that it is possible for a State to make public certain details about the operation of a scheme of external surveillance without compromising national security. 69. In conclusion, the Court does not consider that the domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications. In particular, it did not, as required by the Court ’ s case-law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. The interference with the applicants ’ rights under Article 8 was not, therefore, “in accordance with the law”. 70. It follows that there has been a violation of Article 8 in this case. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 71. The applicants also complained under Article 13, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” They submitted that Article 13 required the provision of a domestic remedy allowing the competent national authority to deal with the substance of the Convention complaint and to grant relief. The 1985 Act, however, provided no remedy for an interference where there had been a breach of the section 6 “arrangements” in a particular case. A. Admissibility 72. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 73. However, in the light of its above finding that the system for interception of external communications under the 1985 Act was not formulated with sufficient clarity to give the individual adequate protection against arbitrary interference, the Court does not consider that it is necessary to examine separately the complaint under Article 13. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 74. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 75. The applicant submitted that the application related to allegations of unlawful interception of communications over a period of approximately seven years (1990-1997), and claimed EUR 3,000 each, making a total of EUR 9,000 in respect of non-pecuniary damage. 76. The Government referred to a number of other cases involving covert surveillance where the Court held that the finding of a violation was sufficient just satisfaction ( Khan v. the United Kingdom, no. 35394/97, ECHR 2000-V; Armstrong v. the United Kingdom, no. 48521/99, 16 July 2002; Taylor-Sabori v. the United Kingdom, no. 47114/99, 22 October 2002; Hewitson v. the United Kingdom, no. 50015/99, 29 May 2003; Chalkley v. the United Kingdom, no. 63831/00, 12 June 2003 ) and submitted that no financial compensation for non-pecuniary damage would be necessary in the present case. 77. In the circumstances of this case, the Court considers that the finding of violation constitutes sufficient just satisfaction for any non-pecuniary damage caused to the applicants. B. Costs and expenses 78. The applicant also claimed GBP 7, 596, excluding value added tax (“VAT”) for the costs and expenses incurred before the Court. 79. The Government noted that counsel had acted throughout on a pro bono basis, and submitted that the GBP 180 hourly rate charged by Liberty was excessive. They proposed that GBP 120 per hour would be more reasonable, giving a total of GBP 5, 064. 80. The Court awards EUR 7,500 plus any VAT that may be chargeable. C. Default interest 81. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention. It did not consider that the domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the authorities to intercept and examine external communications. In particular, it did not, as required by the Court’s case-law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. The interference with the applicants’ rights under Article 8 was not, therefore, “in accordance with the law”. |
279 | (Suspected) terrorists | THE LAW ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF THE CONVENTION 59. The applicant complained that there had been violations of Article 5 § 1 of the Convention because he had been arrested without a court decision, the arrest report had only been drawn up the day after his arrest, and the arrest report had been worded in vague terms. The relevant parts of Article 5 § 1 read: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” Admissibility 60. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 61. The urgency of the situation had not prevented the officers conducting the search from drawing up two detailed search reports, running to seven pages each, printed on a laptop. This demonstrated that they had had sufficient time to formalise the details of the search. The Government had not explained why the same could not have been done in respect of the arrest report. There had been many officers involved and so it had been possible. The applicant considered that the real reason for the delay had been to delay his access to a lawyer. 62. The fact that the arrest report had correctly indicated the date of the actual arrest was of little relevance, since the report itself had been drawn up with a delay. Before it had been drawn up on 20 October 2015, no other record of detention had existed. In Smolik v. Ukraine ( no. 11778/05, §§ 43 ‑ 48, 19 January 2012), the Court had found that a subsequent acknowledgement of the actual date of arrest in a judicial decision had not been sufficient to cure the absence of a contemporaneous record of arrest. There had been no public record of the arrest as soon as it had occurred, resulting in the denial of procedural safeguards. This had prejudiced the applicant ’ s situation as he had not been informed of his rights to remain silent and to a lawyer, as a result of which supposedly self-incriminating statements had been recorded in the search reports. 63. The crime the applicant had been charged with had taken place weeks before his arrest. No arrest could therefore be made without a court order as the conditions for a “warrantless” arrest set out in Article 208 of the Code of Criminal Procedure had not been met. The report had not indicated exactly who had “identified” the applicant as the perpetrator or which clear “signs” had indicated that he had just committed the crime. There had been a breach of the domestic law in that respect. (b) The Government 64. The Government referred to the events in certain areas of the Donetsk and Luhansk regions, where the anti-terrorist operation had been conducted, since April 2014, against the so-called “DPR” and “LPR”, considered by the Government to be illegal armed groups and terrorist organisations. The very decision to launch that military operation had been motivated by the rapid proliferation of the separatist movement in a number of regions of Ukraine, including Odessa. That movement benefitted from what the Government described as the “comprehensive support” of the Russian Federation. Odessa remained one of the cities with the highest levels of terrorist threat. The applicant was a member of Sut vremeni, the same movement whose members were also involved in the armed activities of the “DPR” and “LPR” ( see also paragraph 10 above). 65. The Government pointed out that the situation in the present case was to be distinguished from cases where the Court had condemned the practice of unrecorded detention by the police. Notably, it had been recorded in the arrest report that the arrest had taken place at 10.30 a.m. on 19 October 2015 ( see paragraph 22 above). 66. The authorities had had strong grounds to believe that the applicant was engaged in terrorist activity and had been under an obligation to act with the utmost urgency, most notably to extract the explosives from the block of flats where they were stored. After that had been done the applicant had been escorted to the office where the arrest report had been finalised. 67. The delay in the finalisation of the report had not affected the applicant ’ s position: he had been provided with a defence counsel and brought before a court already on 20 October 2015. The court, in its order authorising the applicant ’ s detention, had noted that he had been taken into custody at 10.30 a.m. on 19 October, so his arrest had been subject to a judicial review and his complaints in that respect had been found to be unsubstantiated. 68. The arrest report had contained specific information concerning the grounds for the applicant ’ s arrest, including the offence of which he had been suspected, the names of his suspected accomplices, and the time and place where the offence had been committed. This demonstrated that there had been a reasonable suspicion against him. The matter had been examined by two levels of domestic court, which had found that the arrest had been in compliance with domestic law. The Court ’ s assessment (a) Delay in the drawing up of the arrest report 69. It is not disputed that the applicant was first deprived of his liberty at 10.30 a.m. on 19 October 2015 ( see paragraph 16 above) and that there was a delay of more than twenty-three hours between the actual time of arrest and drawing up of the arrest report the next day ( see paragraph 22 above). While the applicant complained about the delay ( see paragraph 28 above), no explanation was ever provided for it in the domestic proceedings. 70. The Court has found violations of Article 5 § 1 in a number of cases where there was a delay in the drawing up of such reports (see, among many other examples, Grinenko v. Ukraine, no. 33627/06, §§ 9, 75 and 76, 15 November 2012, where the delay was in excess of fourteen hours, and Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 78, 26 June 2018, where, in respect of eight applicants, delay lasted from seven to twenty ‑ three hours). 71. It is true that in the present case the authorities immediately acknowledged that the arrest report had been made with a delay. However, in Smolik v. Ukraine (no. 11778/05, § 46, 19 January 2012) the Court held that the subsequent acknowledgement of a delay in the recording of an arrest could not remove the problem under Article 5 § 1 in the absence of contemporaneous records. In this respect it recalls that the absence of an arrest record must in itself be considered a serious failing, as it has been the Court´s constant view that unrecorded detention of an individual is a negation of the fundamentally important guarantees contained in Article 5 of the Convention (see, mutatis mutandis, Fortalnov, cited above, §§ 76 and 79; see also Makarenko v. Ukraine, no. 622/11, §§ 60 and 65, 30 January 2018; Beley v. Ukraine [Committee], no. 34199/09, § 60, 20 June 2019). The lack of a necessary record of a person ’ s detention as a suspect may deprive that person of access to a lawyer and all other rights of a suspect (see, mutatis mutandis, Fortalnov, cited above, § 77). 72. The Court sees no reason to reach a different conclusion in the particular circumstances of the present case. As to the Government ’ s argument that the applicant was not affected, the Court notes that on account of the delay in drawing up of the arrest report, the applicant ’ s access to a lawyer and notification of his rights as a defendant were delayed ( see paragraphs 22 and 24 above). 73. There has, accordingly, been a violation of Article 5 § 1 of the Convention on account of the delay in the drawing up of the arrest report. (b) Arrest without a prior court decision 74. Article 208 § 1 of the Code of Criminal Proceedings provides for only two situations where a person can be arrested without a prior court decision ( see paragraph 45 above): (1) if the person has been caught whilst committing a crime or attempting to commit one; or (2) if immediately after a criminal offence the statements of an eyewitness, including the victim, or a combination of clear signs on the body, clothes or at the scene of the event indicate that the person has just committed an offence. 75. It is the latter of the two grounds that was underlined in the arrest report ( see paragraph 22 above). It has never been suggested by any domestic authority that the former of the two grounds was also applicable. 76. The applicant argued before this Court, as he had done at the domestic level, that the second sub-clause of Article 208 § 1 did not apply to him. Firstly, it was unclear from the arrest report who the “eyewitnesses” had been who implicated him in that alleged offence. Secondly, the requirement of “immediacy” was not met since several weeks passed between the terrorist act of which the applicant had been suspected at the time and his arrest ( see paragraph 63 above). 77. The Court notes that the authorities did possess evidence of at least one eyewitness, the applicant ’ s co-conspirator G. ( see paragraphs 25 and 32 above). The relevant domestic law provisions required, however, that such an eyewitness identification occur “immediately” after the offence. It remains to be seen whether this requirement of “immediacy” was met. 78. The parties have not pointed to any domestic case-law which would define the exact meaning of the term “immediate” in that context. 79. In its previous judgments the Court found violations of Article 5 § 1 in respect of arrests effected under the equivalent provision of the 1960 Code of Criminal Provision ( see paragraph 47 above), which also allowed arrest without a court decision “immediately after” an offence was committed, where considerable time elapsed between the alleged offence and the arrest (see, for example, Malyk v. Ukraine, no. 37198/10, § 27, 29 January 2015, where the period concerned was half a year, and Strogan v. Ukraine, no. 30198/11, § 88, 6 October 2016, where it was four months). 80. In the present case, the applicant was arrested about three weeks after the offence in question, the terrorist act at the SBU building ( see paragraphs 11 and 16 above). 81. The applicant argued before the domestic courts that such a delay was incompatible with the requirement of “immediacy” under the relevant provision of the Code of Criminal Procedure. Given that the literal language of the Code tended to support the applicant ’ s interpretation, his argument does not appear frivolous and required a response. However, the domestic courts, in particular the Court of Appeal, did not address it ( see paragraph 29 above). 82. The Court does not exclude that there might have been other legal grounds under domestic law for the applicant ’ s arrest, but the Court is not in a position to speculate on that point since the domestic authorities did not refer to any such alternative grounds. 83. In summary, neither the domestic courts provided no explanation for why sub-paragraph 2 of Article 208 § 1 of the Code of Criminal Procedure could serve as the legal basis for the applicant ’ s warrantless arrest, despite the applicant ’ s argument, grounded in the language used in the relevant legislative provision itself, to the contrary. Nor did they point to any other provisions of domestic law which would provide a legal basis for the applicants ’ detention. 84. In such circumstances, the Court is unable to find that the applicant ’ s arrest in the absence of a prior court decision was “in accordance with a procedure prescribed by law”. 85. There has, accordingly, been a violation of Article 5 § 1 of the Convention on account of the applicant ’ s arrest without a prior court decision. (c) The wording of the arrest report 86. In view of the findings above there is no need to examine the complaint under Article 5 § 1 of the Convention concerning the wording of the arrest report. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 87. The applicant complained of a violation of Article 5 § 2 of the Convention: “2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” Admissibility 88. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 89. The applicant submitted that the officers who had arrested him had not informed him of the reasons for either his arrest or the search (see paragraph 17 above). The search reports ( see paragraphs 18 and 19 above) had contained no indications which would have allowed him to understand those reasons, and there had been no other document which had contained that information. In the course of the first search, at his home, the officers had discovered a lease for the rented flat ( see paragraph 18 above). It had been on that discovery and not his statements that the decision to search the rented flat had been based. 90. Furthermore, his keys had been seized from him in the course of the first search and, therefore, he could not have opened the rented flat with his own key as indicated in the report on the second search ( see paragraphs 18 and 19 above). He had made no objection to the content of the latter report as he had had no lawyer at the time and had only been provided with one on 20 October 2018. In any event, the officers concerned had extensively questioned him after the arrest without explaining his rights to him or ensuring that he had access to a lawyer. The authorities could not therefore be allowed to “profit from their wrongdoing” by relying on the statements obtained from him during the searches in breach of his rights as evidence that he had been informed of the reasons for his arrest. 91. The applicant relied on the case of Zuyev v. Russia ( no. 16262/05, §§ 84 and 85, 19 February 2013), where the Court found a fourteen-hour delay too long to satisfy the requirements of Article 5 § 2. (b) The Government 92. The applicant had been informed orally of the reasons for his arrest immediately after it had taken place, as required by law ( see paragraph 45 above). Article 5 § 2 did not require the reasons to be given in writing or otherwise in a particular form (citing Kane v. Cyprus ( dec. ), no. 33655/06, 13 September 2011). 93. In the course of the first search conducted immediately after the arrest in his home, the applicant had informed the officers that the bomb ‑ making equipment was at his rented flat. This demonstrated that he had fully understood the nature of suspicions against him. Article 5 § 2 allowed the reasons for the arrest to be provided in the course of post-arrest interrogations or questioning (citing Murray v. the United Kingdom, 28 October 1994, § 77, Series A no. 300 ‑ A). In any event, detailed written reasons for the arrest had been served on the applicant the very next day, on 20 October 2015, which had been prompt enough in the context to meet the requirements of Article 5 § 2. The Court ’ s assessment 94. The Government submitted that at the time of arrest the SBU officers had informed the applicant of the reasons for the arrest orally, as required by law ( see paragraph 92 above). The applicant denied this ( see paragraph 89 above). However, while the Government ’ s explanations are corroborated by the context and sequence of events, the applicant ’ s denial is vague, unsubstantiated and does not appear plausible. Notably, he did not explain in any detail what precisely the officers had told him concerning his arrest and the searches, whether he had demanded an explanation and, if so, what the response had been. 95. He appeared to concede that the security officers had questioned him about the explosives in the course of the search ( see paragraph 90 above) but insisted that that fact, and his responses recorded in the search report, could not be considered a valid notification for the purposes of Article 5 § 2, as his statements had been obtained in breach of his right to a lawyer. However, even in the absence of any response on his part, the tenor of the questions must have given him an indication of the reasons for his deprivation of liberty. 96. Moreover, the issue of whether any questioning in the course of the search led to a violation of the applicant ’ s right to legal assistance could be relevant in the context of Article 6 of the Convention. However, this matter is not part of the present application. 97. The primary goal of Article 5 § 2 is not to safeguard an applicant ’ s right to legal assistance in the criminal proceedings against him but rather to provide a safeguard against arbitrary deprivation of liberty and allow the applicant to obtain an effective review of the lawfulness of his detention, which would not be possible without knowing the reasons for it ( see Van der Leer v. the Netherlands, 21 February 1990, § 28, Series A no. 170 ‑ A). The Court ’ s judgment in Dikme v. Turkey ( no. 20869/92, §§ 54-57, ECHR 2000 ‑ VIII) provides a good example of this distinction: in that case, even though there were credible allegations that the applicant was ill-treated and questioned without a lawyer, the Court found no violation of Article 5 § 2 because the very tenor of that potentially problematic questioning had communicated to the applicant the reasons for the arrest. 98. Be it as it may, given the situation in Odessa at the relevant time and the notorious nature of the series of explosions in question ( see paragraphs 9 and 12 above), the very fact that a search was conducted by SBU officers, accompanied by a demining expert, in the course of which explosive devices were discovered must have largely communicated to the applicant the reasons for his deprivation of liberty (compare, mutatis mutandis, Öcalan v. Turkey ( dec. ), no. 46221/99, 14 December 2000). 99. There is no indication that any possible delay in the formal explanation of the reasons for the applicant ’ s arrest was in any way prejudicial to him in terms of him being able to challenge the lawfulness of his detention: in fact, he appeared before the judge the day after his arrest and, at that time, he and his lawyer already had the formal notification of suspicion against him. 100. There has, accordingly, been no violation of Article 5 § 2 of the Convention. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 101. The applicant complained that the application in his case of Article 176 § 5 of the Code of the Criminal Procedure, which precluded the use of non-custodial preventive measures to terrorism suspects, had resulted in a violation of Article 5 § 3 of the Convention, which reads: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” Admissibility 102. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 103. Article 176 § 5 of the Code of Criminal Procedure ( see paragraph 40 above, hereinafter also “the Bail Exclusion Clause”) barred the use of any preventive measure other than pre-trial detention in respect of persons accused of involvement in terrorism, like the applicant. For him, the situation was analogous to S.B.C. v. the United Kingdom ( no. 39360/98, § 23, 19 June 2001) and Boicenco v. Moldova (no. 41088/05, §§ 135-138, 11 July 2006) and also disclosed a violation of Article 5 § 3. 104. After the initial pre-trial detention order the courts had continued to invoke the Bail Exclusion Clause in their subsequent decisions. On 8 April 2016 the Court of Appeal had even explained why it considered the Bail Exclusion Clause compliant with Article 5 of the Convention ( see paragraph 35 above). This demonstrated that reliance on the provision in question was important and far from an incidental formal reference with no effect, as the Government had pretended. 105. Contrary to what the Government had suggested, the courts could not in any way derogate from the Bail Exclusion Clause. In that connection the applicant submitted a press release from the SBU dated 15 October 2005 announcing that criminal proceedings had been instituted against a judge in the Donetsk region who had released a person suspected of terrorism financing on bail. The applicant also referred to a report of the OHCHR criticising the Bail Exclusion Clause ( see paragraph 57 above). 106. In further observations submitted at the Chamber ’ s invitation ( see paragraph 5 above), the applicant maintained his initial position and submitted that the Constitutional Court ’ s decision of 25 June 2019 declaring the Bail Exclusion Clause unconstitutional and other recent domestic case ‑ law could be seen as measures which were, in principle, favourable to him. Those developments did not mean, however, that the authorities acknowledged a violation of the applicant ’ s rights or afforded redress to him. Notably, none of the decisions extending his detention had been set aside. The Constitutional Court ’ s decision had no retroactive effect. Therefore, the applicant could still claim to be a “victim” of a violation of his rights under Article 5 § 3 and his complaint remained admissible. (b) The Government 107. The Government submitted that there had only been a pro forma reference to the Bail Exclusion Clause in the court decision ordering the applicant ’ s detention. The court had primarily relied on grounds such as the strong suspicion that the applicant had committed a terrorist attack and the risk that he would continue criminal activities or abscond if released. The applicant ’ s detention had been necessary because he was a member of “a pro-Russia underground terrorist network” and if at large could abscond as another suspect, Ch., had done ( see paragraph 14 above). Moreover, the fact that after the attack on the SBU building the applicant had continued to make explosive devices had demonstrated his intention to continue his dangerous criminal activities. The applicant would therefore have been detained regardless of the Bail Exclusion Clause. 108. For this reason, the speculative question of whether, in the absence of that legislative provision, the applicant would have been placed in detention, was irrelevant. 109. In further observations submitted at the Chamber ’ s invitation ( see paragraph 5 above), the Government reported that, after the period covered by their initial observations, the applicant ’ s detention continued to be extended ( see paragraph 37 above). The Court ’ s assessment (a) Relevant general principles 110. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention ( see Buzadji, cited above, § 90, with further references). Any system of mandatory detention on remand is per se incompatible with Article 5 § 3 ( see Ilijkov v. Bulgaria, no. 33977/96, § 84, 26 July 2001). 111. It primarily falls to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. Accordingly, they must, with respect for the principle of the presumption of innocence, examine all the facts militating for or against the existence of the above-mentioned requirement of public interest or justifying a departure from the rule in Article 5, and set them out in their decisions on applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 ( see Buzadji, cited above, § 91). 112. The persistence of a reasonable suspicion is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices: the Court must then establish (1) whether other grounds cited by the judicial authorities continue to justify the deprivation of liberty and (2), where such grounds were “relevant” and “sufficient”, whether the national authorities displayed “special diligence” in the conduct of the proceedings. The Court has also held that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (ibid., § 87). 113. That requirement on the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand (ibid., § 102). 114. When deciding whether a person should be released or detained, the authorities are obliged to consider alternative means of ensuring his or her appearance at trial (ibid., § 87). 115. Justifications which have been deemed “relevant” and “sufficient” reasons (in addition to the existence of reasonable suspicion) in the Court ’ s case-law, have included grounds such as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (ibid., § 88). (b) Application of the relevant principles to the present case 116. The Court has held, on several occasions, that legislative schemes limiting the domestic courts ’ decision-making powers in matters of pre-trial detention breached Article 5 § 3 of the Convention ( see S.B.C. v. the United Kingdom, no. 39360/98, §§ 23 and 24, 19 June 2001; Boicenco v. Moldova, no. 41088/05, §§ 134-38, 11 July 2006; and Piruzyan v. Armenia, no. 33376/07, §§ 105 and 106, 26 June 2012). 117. In this context the Court notes the Constitutional Court ’ s decision to declare unconstitutional the Bail Exclusion Clause on the grounds that its operation in practice limited the domestic courts ’ ability to issue properly reasoned detention orders ( see paragraph 53 above). It is a matter of satisfaction for the Court that the Constitutional Court ’ s decision eliminated the risk (also stressed by the OHCHR – see paragraph 57 above ) that the Bail Exclusion Clause would have such a negative effect in future cases. 118. The Court reiterates, however, that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they affected the applicant gave rise to a violation of the Convention ( see N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X). As stated above, the Constitutional Court ’ s decision was primarily focused on the Bail Exclusion Clause preventing the courts from properly reasoning the detention orders, which is also a matter that is closely associated with the particular circumstances of a given case. 119. Contrary to the situation in the cases cited in paragraph 116 above, in the present case the domestic courts had the power to review the existence of a reasonable suspicion against the defendant, examine the evidence in this respect and order his release if they considered that no reasonable suspicion was shown in respect of the charges brought against him (see, for an example of a similar situation in Croatia, Merčep v. Croatia, no. 12301/12, § 102, 26 April 2016) or if they considered that there were no risks justifying detention ( see paragraphs 43 and 54 to 56 above). 120. The case material demonstrates that the domestic courts, which had before them considerable evidence in support of the suspicion against the applicant, did exercise this power of control in his case ( see paragraphs 14, 15, 18, 19, 25 and 26 above), as they had done in some other terrorism and national security-related cases ( see examples of the domestic courts ’ decisions in paragraphs 54 to 56 above). 121. The Court reiterates that in some instances concerning particularly serious crimes, the nature and gravity of the charges against a defendant is a factor weighing heavily against his or her release and in favour of remanding him or her in custody ( see Merčep, cited above, § 96, with further references). The generally formulated risk flowing from the organised nature of the criminal activities of which the applicant is accused has been accepted as the basis for his or her detention, in particular at the initial stages of the proceedings ( see Dudek v. Poland, no. 633/03, § 36, 4 May 2006 ). 122. In Khodorkovskiy v. Russia (no. 5829/04, § 196, 31 May 2011) the Court remarked that, even though that situation had not arisen in that case, in some circumstances, for example where the suspect allegedly belonged to a gang implicated in violent crimes, or, probably, in terrorist cases, the “unavailability of bail” could be self-evident (citing Galuashvili v. Georgia, no. 40008/04, §§ 6 et seq., 17 July 2008; Kusyk v. Poland, no. 7347/02, § 37, 24 October 2006; and Celejewski v. Poland, no. 17584/04, §§ 35-37, 4 May 2006). 123. The Court considers that this was the situation in the applicant ’ s case. The unavailability of release was self-evident, given the specific circumstances of the applicant ’ s case. He was suspected of organising and leading a terrorist group composed of several individuals, one of whom had already absconded by the time the applicant was arrested. The group used sophisticated undercover operations techniques and was engaged in a highly dangerous activity, an activity which was allegedly ongoing at the time the arrest was made. 124. In this context the Court must stress that the authorities were under a duty to protect the rights of the actual and potential victims of violent attacks under Articles 2, 3 and 5 § 1 of the Convention. The Court considers that, in circumstances such as those in the applicant ’ s case, it must interpret the scope of the authorities ’ obligations under Article 5 § 3 to provide reasons for their decisions in a manner consistent with the practical requirements of discharging that duty (see, in the context of Article 6, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 252 and 259, 13 September 2016 ). 125. Moreover, his case was examined against the background of great tensions in Odessa at the relevant time and the fleeing of defendants in other previous high-profile cases ( see paragraphs 7 to 10 and 58 above). 126. It is also of key relevance that the District Court, which had full jurisdiction in that respect, found, in proceedings which raised no other issue of compliance with Article 5 § 3, that the evidence supported a reasonable suspicion against the applicant on those specific charges and that there was a risk of him absconding if released. Those findings were reviewed and upheld on appeal. Given the material before the Court, there is no reason to doubt the well-founded nature of the domestic courts ’ findings in that respect. 127. It is true that the reasons in the District Court ’ s initial detention order were stated in a succinct fashion, given that the danger of the applicant absconding was evident. However, the court ’ s succinct reasoning cannot alone amount to a violation of Article 5 § 3 (see, for example, Van der Tang v. Spain, 13 July 1995, § 60, Series A no. 321). Moreover, the degree of specificity of the domestic courts ’ reasons evolved over time: on 8 April 2016, in upholding the order extending the applicant ’ s detention, the Court of Appeal referred to his specific role in the organisation of clandestine activities as grounds for believing that he presented a flight risk ( see paragraph 35 above). The Court observes that it has not been suggested that the authorities failed to display “special diligence” in the conduct of the proceedings 128. Lastly, and most importantly, the decision of 20 October 2015 was not based on the Bail Exclusion Clause, although it contained a reference to the latter, but as explained above was the result of a balanced assessment which took into account the seriousness of the crime of which the applicant was suspected and the risk posed by release. 129. In view of the above-mentioned circumstances, the Court considers that the domestic courts gave “relevant” reasons for his detention which were “sufficient” under the circumstances to meet the minimum standard of Article 5 § 3 of the Convention. 130. The Court finds, therefore, that, in the particular circumstances of the present case, there has been no violation of Article 5 § 3 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 131. The applicant complained of a violation of Article 6 § 2 of the Convention on account of the language used by the District Court in its initial pre-trial detention order. Article 6 § 2 of the Convention reads: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Admissibility 132. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 133. The applicant submitted that the District Court had stated, in its pre-trial detention order, that he “had committed a particularly grave offence” ( see paragraph 26 above) and thus had affirmed his guilt in the absence of a conviction. That statement had been phrased as a statement of fact, expressed without any qualification or reservation. By making it, the District Court had taken the side of the prosecution, thus prejudging the outcome of the proceedings against him. The statement could only have conveyed to the reader that he was in fact guilty. Even though he had raised this matter on appeal, the Court of Appeal had not commented on it. 134. That latter fact was of critical importance. The applicant considered that a similar situation had occurred in Fedorenko v. Russia, (no. 39602/05, §§ 89-93, 20 September 2011), where the Court of Appeal had failed to correct the first-instance court, which had stated in a detention order that the applicant “had committed a serious criminal offence”, dismissing it as a mere “technical error”. In that case the Court had found a violation of Article 6 § 2. (b) The Government 135. The Government submitted that what was important in the application of Article 6 § 2 was the true meaning of statements and not their literal form. The District Court, in its decision of 20 October 2015, had made it clear that the applicant was merely suspected by the authorities of a terrorist attack. While the literal expression used by the District Court “had committed a particularly grave offence” might seem to be in breach of the principle of the presumption of innocence, its context had to be taken into account. It had been used in the context of considering whether the applicant ’ s detention had to be ordered, and it had been essential in that context to examine whether there was a reasonable suspicion against the applicant. That was precisely what the judge had intended to say in the order, and this had been explained in the Court of Appeal ’ s decision of 28 October 2015. Moreover, the relevant court order had not been made available to the public. The Court ’ s assessment (a) Relevant general principles 136. The Court reiterates that the principle of the presumption of innocence under Article 6 § 2 will be violated if a judicial decision or, indeed, a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proved under the law. It suffices, in the absence of a formal finding, that there is some reasoning suggesting that the court or the official in question regards the accused as guilty, and a premature expression of such an opinion by the tribunal itself will inevitably run foul of the principle ( see Ramkovski v. the former Yugoslav Republic of Macedonia, no. 33566/11, § 81, 8 February 2018, with further references ). However, a distinction should be made between statements which reflect the opinion that the person concerned is guilty and statements which merely describe “a state of suspicion”. The former infringe the presumption of innocence, whereas the latter have been regarded as unobjectionable in various situations examined by the Court. 137. The Court has previously held that the statements in question must be read as a whole and in their proper context (ibid., § 82). When regard is had to the nature and context of the particular proceedings, even the use of some unfortunate language may not be decisive. The Court ’ s case-law provides some examples of instances where no violation of Article 6 § 2 was found even though the language used by domestic authorities and courts had been criticised ( see Allen v. the United Kingdom [GC], no. 25424/09, § 126, ECHR 2013, citing, in the latter respect, Reeves v. Norway ( dec. ), no. 4248/02, 8 July 2004, and A.L. v. Germany, no. 72758/01, §§ 38-39, 28 April 2005). (b) Application of the above principles to the present case 138. The Court has found violations of Article 6 § 2 in many cases where the domestic courts, in pre-trial detention decisions, stated in an unqualified way that the applicant had committed an offence (see, for example, Matijašević v. Serbia, no. 23037/04, §§ 47-51, ECHR 2006 ‑ X; Garycki v. Poland, no. 14348/02, §§ 13, 71-73, 6 February 2007; Nešťák v. Slovakia, no. 65559/01, §§ 89-91, 27 February 2007; Fedorenko, cited above, §§ 90-93; Gutsanovi v. Bulgaria, no. 34529/10, §§ 202-204, ECHR 2013 (extracts); and Mugoša v. Montenegro, no. 76522/12, §§ 68 and 69, 21 June 2016). 139. The pre-trial detention order contained references to the suspicion against the applicant and, indeed, the District Court ’ s role in the proceedings was first of all to verify whether there was a reasonable suspicion against the applicant, as submitted by the investigating authority. However, the part of the pre-trial detention order where the expression in question was used was not dedicated to a description of the investigating authority ’ s submissions or a discussion of the presence or otherwise of a reasonable suspicion. 140. Rather, the expression was used in the context of examining whether there were circumstances justifying the applicant ’ s detention: a risk of him absconding, interfering with the investigation or continuing criminal activities. By the time the District Court turned to those matters, it had already summarised the investigating authority ’ s submissions and had found it established that there was a reasonable suspicion against the applicant. 141. The Court does not perceive any reason for the District Court then to return to the matter again just to repeat, as the Government suggested ( see paragraph 135 above), that it considered that there was a reasonable suspicion against the applicant. Moreover, under domestic law, persistence of a reasonable suspicion and existence of certain risks justifying detention, such as the risk of absconding, are two distinct matters. The District Court clearly used the expression in the latter, not the former, context. 142. The District Court appears to have used the expression not to proclaim the applicant guilty as such but to justify its decision to place him in pre-trial detention. However, as the above-mentioned case-law indicates, this alone does not rule out a finding of a violation since the Court has repeatedly found violations of Article 6 § 2 on account of an unqualified declaration of guilt in a pre-trial detention order. 143. The circumstances of the present case should be distinguished from cases where the courts stated that the applicants had “committed” certain acts classified in some way under domestic law merely to say that they considered that the applicants met certain legal criteria for a measure to be applied to them, such as extradition ( see Gaforov v. Russia (no. 25404/09, § § 212-16, 21 October 2010) or pre-trial detention ( see Lada v. Ukraine ([CTE], no. 32392/07, §§ 17, 18 and 51, 6 February 2018). By contrast, in the present case the District Court, by the time it used the offending expression, had already disposed with the question, indeed a relevant one under domestic law ( see paragraphs 48 above) of whether the applicant fell into a category of defendants, which, because of the particular gravity of the charges against them, qualified for pre-trial detention ( see the relevant provision of the domestic law in paragraph 42 above). 144. Lastly, it cannot be said that the District Court referred to the particular characteristics of the charges against the applicant, such as the organised nature or sophistication of the alleged criminal activity (contrast Perica Oreb v. Croatia, no. 20824/09, §§ 29 and 142, 31 October 2013, and Ramkovski, cited above, §§ 18, 83 and 84) or its particularly gruesome nature, exceeding the “basic” features of the offence in question (contrast Karan v. Croatia ( dec. ), no. 21139/05, 7 December 2006), as a basis for the court ’ s opinion that the pre-trial detention was justified. The District Court ’ s statement was devoid of any of those redeeming features, as it referred not to the particular characteristics of the offence the applicant was suspected of but to the applicant having “committed it”. 145. In such circumstances, the Court is unable to read the statement in question other than as an expression of the District Court ’ s opinion that the applicant was indeed guilty of the particularly grave offence of which he had been merely suspected, and not convicted, at the time. 146. The Court is prepared to entertain the possibility that the District Court may have merely committed a technical error in poorly wording its decision. However, neither the District Court, Court of Appeal nor any other domestic authority acknowledged that any such error had been committed or attempted to correct it (see, mutatis mutandis, Matijašević, § 47, and Mugoša, § 68, and contrast Fedorenko, § 91, and Lada, §§ 18 and 51, all cited above). 147. There has, accordingly, been a violation of Article 6 § 2 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 148. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 149. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage. 150. The Government, reiterating their submissions that there had been no violations of the applicant ’ s rights, considered the claim unjustified and, in any event, excessive. 151. The Court considers that, in the circumstances of the present case, the finding of violations constitutes in itself sufficient just satisfaction for any non ‑ pecuniary damage sustained by the applicant. Default interest 152. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 5 §§ 2 and 3 (right to liberty and security) of the Convention concerning the applicant’s complaints about not being informed promptly of the reasons for his arrest and about bail not being available to him by law because he was accused of terrorism offences. The Court found in particular that, in the specific circumstances of the applicant’s case, the domestic courts had provided sufficient reasons for his pre-trial detention given that he had been suspected of a bomb attack at a time of great tension in Odessa and in the context of defendants in other previous high-profile cases having fled once released. However, it noted with satisfaction that the Constitutional Court of Ukraine had since decided to declare unconstitutional the law on bail, invoked in the applicant’s case, which in some cases had limited the domestic courts’ ability to issue properly reasoned detention orders. The Court held, however, that there had been two violations of Article 5 § 1 of the Convention, because the applicant’s arrest had been carried out without a prior court decision and had not actually been recorded until the next day. Lastly, the Court held that there had been a violation of Article 6 § 2 (presumption of innocence) of the Convention in the applicant’s case, because the initial pre-trial detention order against him had stated that he was guilty of a particularly “grave offence” while, at the time, he had merely been suspected and not convicted of any terrorism offence. |
720 | Natural disasters | II. RELEVANT DOMESTIC LAW AND PRACTICE 132. Pursuant to section 14 of the Criminal Proceedings Act (Law No. 1412) of 4 April 1929, which was in force at the material time [8], competent judges or courts which, for legal or material reasons, were unable to exercise their territorial jurisdiction or considered that continuation of proceedings under its jurisdiction might be dangerous in terms of guaranteeing the prosecution of the case, could decide to transfer the case to another court of the same level. It was incumbent on the Ministry of Justice to request the transfer of the case for reasons of guaranteeing its prosecution. 133. The Prosecution of Officials and other Civil Servants Act ‘ Law No. 4483 ), enacted on 2 December 1999, states that officials may only be tried for acts committed during the exercise of their duties with the authorisation of the relevant administrative authority. An appeal lies with decisions to grant or refuse authorisations of investigation. Section 3 ( h) of that Act lays down that the Minister of the Interior is responsible for initiating an investigation against Mayors of cities and towns and members of their municipal councils and the Provincial Council. Section 9 of the same Act provides that the Second Division of the Council of State is responsible for examining, in particular, appeals lodged against decisions taken under section 3 ( h) of the Act, and that decisions taken at appeal level are final. 134. Section 32 of the Urban Planning Act (Law No. 3194 ) of 3 May 1985, published in the Official Gazette on 9 May 1985, which was in force at the material time provided as follows : “ Buildings constructed without permits or contrary to the permit and the appendices thereto Section 32. Pursuant to the provisions of this Act, where, except in the case of buildings which can be erected without a permit, ... it is noted that a building has been commenced without a permit or has been constructed contrary to the permit and the appendices thereto, the state of the construction must be assessed ... by the municipality or by the Office of the Governor. [ Seals must be affixed to the ] building and the works [ must be ] immediately halted. The stoppage of works shall be deemed notified to the owner of the building by the posting of the official record of the stoppage decision on the building site. A copy of that notification must be submitted to the muhtar. As of the date of notification, and within a month at the latest, the building owner shall apply to the municipality or to the Office of the Governor for the lifting of the seals, having either obtained a permit or brought his building into line with the existing permit. In the case of a building constructed contrary to the permit issued, where it is noted, after inspection, that that non-compliance has been [corrected ] or that a permit has been obtained and the construction complies with that permit, the seals shall be lifted by the municipality or by the Office of the Governor and building works shall be allowed to continue. ” Section 42 of that Act laid down the administrative penalties applicable to buildings constructed contrary to the provisions of the Act. 135. Law No. 7269 of 15 May 1959 on preventive and relief measures to be adopted regarding the effects of disasters on the life of the population, published in the Official Gazette on 25 May 1959, sets out the preventive and relief measures to be adopted in deal with natural disasters. 136. The adopted on 2 September 1997 and amended on 2 July 1998 set out, in particular, the technical criteria for buildings constructed in disaster areas. On 6 March 2007 new Regulations on buildings to be erected in disaster areas were published in the Official Gazette. 137. On 27 August 1999 the Grand National Assembly of Turkey decided to set up a Commission of Inquiry to consider all the measures taken before, during and after the earthquake. On 23 December 1999 that Commission presented its report, the relevant sections of which read as follows : “ VI. Appraisal : ... It was noted that despite the setting up of crisis units, which began operations after the earthquake, the relief and assistance committees and the civil defence officers had not been properly organised and that there had been operational delays. After the 17 August earthquake our company noted that the provision of assistance had become chaotic because of poor preparation and deficient organisation. Whereas it is for the public authorities to take action in situations of disaster liable to affect the lives of the population, those authorities were basically overwhelmed. The reasons for their powerlessness was, no doubt, the size of the area hit by the earthquake, the breakdown in communications, the power cuts and the inaccessibility of infrastructures. That being the case, there were delays in practice because the officials responsible for these provinces classified as major earthquake hazard areas had no plans setting out the measures to be taken in the event of this type of disaster or describing the roles and responsibilities of each part in the event of an earthquake, or else because they had never envisaged an earthquake ever happening. However, in view of the critical situation in the region and the risk of a worst-case scenario they ought to have been prepared [ been ] in a position to take effective action ... Although the officials leading the crisis units carried out their work determinedly and unstintingly, it was nonetheless noted that they were not prepared for a natural disaster, had no emergency action plans or programmes, and that even where they had such plans and/or programmes, they had been unable to implement them owing to the appalling impact of the disaster. ... Another authority [ which ] had failed to take effective and adequate action during the relief operations was the Civil Defence Department ... The very small number of civil defence relief teams ... totalling approximately 110 persons literally vanished amidst the 13, 600 buildings which collapsed on 17 August. That meant that very many persons who could have been dug out of the rubble remained there and died. If there had been civil relief available during the rescue operations to direct and supervise the untrained, unexperienced volunteers, it is certain that [ more of ] our fellow- citizens would still be alive today. The municipalities are responsible for regulating urban development in the provinces and districts. It has been noted that these major responsibilities devolved to the municipalities under the decentralisation process have been used ... to political ends... The local leaders and municipalities have abused the legal rights conferred upon them and turned their towns and cities into concrete jungles. ... ” THE LAW 138. Having regard to the similarity of the applications in terms of the facts and the complaints, the Court decides to join them. I. THE PURPOSE OF THE APPLICATIONS AND THE APPLICANT PARTIES A. The purpose of the applications 139. The Court notes that in their application forms that applicants submit that the criminal proceedings before the Konya Assize Court were the largest to be brought in the wake of the earthquake, in particular in terms of the number of victims concerned by the proceedings. The applicants submitted that the proceedings, which related to a serious infringement of the right to life, raised the issues not only of major negligence on the part of the property developer and his partners, but also of major negligence on the part of the authorities, but that despite all their efforts not all those responsible had been prosecuted. They further stated that the area where the earthquake had occurred had, many years previously, been declared a disaster zone, which meant that any buildings constructed there were subject to special regulations. Flouting those regulations and the requirements of the urban development and architectural plans, municipal the authorities had issued permits for buildings of five storeys and more, which were then erected illegally. Whereas those building should have been constructed in conformity with the specific features of the zone ( closely -spaced iron brackets and two storeys underground ), that had not been the case in the buildings in which the applicants ’ relatives had lost their lives. Moreover, they complained that the municipal authorities had failed to conduct the requisite inspections to check the conformity of the buildings with the relevant standards or to prevent their construction, and considered that those shortcomings amounted to gross negligence which had contributed to causing the deaths of their relatives. 140. The applicants also complained of serious negligence on the part of the authorities owing to shortcomings in the organisation of rescue operations after the earthquake and the fact that the Office of the Governor had failed to draw up a “ disaster plan ”. In particular, the search and rescue operations for people trapped in the rubble had not commenced until several hours after the disaster, as it had proved impossible to draw up lists des of the dead and injured and to transport the injured persons to hospital. The applicants considered that the fact that the authorities had not been prepared for coping with natural disasters had increased the death count. 141. Furthermore, relying on Article 2 of the Convention, the applicants submitted that the deaths of their relatives during the earthquake of 17 August 1999 amounted to a violation of the right to life. While acknowledging that the earthquake had been a natural disaster, they complained that they had been unable to secure the prosecution of all the individuals whom they held responsible. They alleged that the fact of amending the urban development plans without considering the location of the building sites within a natural disaster zone had infringed their relatives ’ right to life. 142. Drawing on Article 6 of the Convention, the applicants also complained of unfairness in the criminal proceedings, and in particular of an infringement of the “natural judge” principle owing to the transfer of the proceedings from Yalova to Konya – a ten-hour drive away, according to the applicants – and the difficulties which that transfer caused them in following the proceedings. In that regard they complained of an infringement of their right of judicial appeal. They also complained of the excessive length of the criminal proceedings. 143. Relying on Article 13 of the Convention, the applicants further complained of their inability to obtain the prosecution of the officials involved despite the fact that the latter ’ s responsibility had been established by expert opinion. They also complained that they had not benefited from an effective remedy enabling them to secure compensation for the damage sustained before both the administrative and the civil courts. 144. Lastly, the applicants relied on Article 1 of Protocol No. 1 to complain of the loss of their housing and that of their deceased relatives. 145. The Court reiterates that it is master of the characterisation to be given in law to the facts of a case and is not bound by the approach taken by the parties to the case. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on ( see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). In the present case the Court considers that regard should be had to all the facts complained of by the applicants in terms of the infringement of their relatives ’ right to life, under the substantive head of Article 2 of the Convention. It further holds that the facts complained of by the applicants under Articles 6 and 13 of the Convention as regards the course of the criminal proceedings and of their inability to secure the prosecution of the officials should also be examined under the procedural head of Article 2 of the Convention. As regards the applicants ’ complaints of the lack of fairness in the proceedings, the lack of an effective remedy enabling them to secure compensation for the violation of their property rights, they should be examined under the articles called in aid, that is to say Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, respectively. B. The applicants in the present case 146. The Court notes that in Mrs Akan ’ s observations submitted after communication of the case to the Government, her lawyer mentioned that the latter was acting on her own and on her daughter ’ s behalf, without giving further details. 147. The Court observes that Mrs Akan ’ s application form did not mention her daughter ’ s applicant status. Therefore, having regard to the wording of the application and to the manner in which and the stage when that fact was brought to its attention, the Court holds that Mrs Akan must be considered as having lodged her application solely on her own behalf. II. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS A. The submissions of the parties 1. The Government ’ s submissions 148. The Government submitted first of all that the applicants had failed to exhaust the available domestic remedies, given that they had neither raised in substance the complaints which they put forward in their applications nor adduced a violation of the Convention. 149. Furthermore, the Government submitted, under Article 125 of the Constitution, that the applicants had had the possibility of engaging the authorities ’ objective responsibility based on the theory of social risk – under which remedy, according to the Government, they could have obtained compensation. The applicants could also have brought compensation proceedings against other private individuals and authorities such as the builder of the buildings in question or the engineer responsible for their construction, which they had refrained from doing. 150. Finally, in support of their submissions on the merits of the complaints under Article 13, the Government argued that the persons responsible for the construction of the buildings which had collapsed had been convicted. They submitted that under Article 34 of the Convention, if an individual had received redress for his complaint, he could no longer claim to be a victim of a violation of the Convention. Even though the applicants had not secured the decisions they had expected, it should be considered that they had been afforded redress for their complaint. 2. The applicants ’ submissions 151. The applicants refuted the Government ’ s submissions. Mr and Mrs Kılıç, Mr and Mrs Erdoğan and Mrs Yüce (Ergüden) submitted that they had exhausted the domestic remedies. Furthermore, although some of the third parties to the criminal proceedings had brought actions against the officials in question before the administrative courts, the latter had dismissed their compensation claims on grounds which were not prescribed by law. Similarly, the actions for damages brought by some complainants before the civil courts had continued for many years without a successful conclusion. In that regard, the aforementioned applicants submitted that the YRC premises had been damaged during the earthquake, that it had been moved several times and that the judges responsible for the case had also been changed several times, with the result that the actions brought by several victims were still ongoing. The applicants had given up any hope of obtaining any kind of compensation by that means. They submitted that in view of the decisions given and the time that had since elapsed the compensation proceedings relating to the earthquake were no longer effective. 152. In response to a request from the Court to parties for further information, counsel for Mr and Mrs Erdoğan and Mr and Mrs Kılıç had informed the Court that owing to the ineffectiveness of the civil action for damages and the cost of the proceedings, his clients had decided to discontinue that remedy. He submitted that in any case there were no effective remedies as regards compensation. 153. Mr Çakır, Mr Özel and Mrs Akan refuted the Government ’ s submissions as regards the existence of an effective compensation remedy. At the time of submission of their observations they had argued that the compensation proceedings had been going on for eleven years, that it was accordingly impossible to secure an effective result and that the amount which would have been awarded would in any case have been unsatisfactory. They also submitted that when the case had been pending before the Court of Cassation, the first- instance court had held that V.G. had not been required under criminal law to compensate the complainants. They added that even if they had been awarded any amount in compensation the impugned company had not had the wherewithal to pay it, such that there was no effective remedy enabling them to obtain compensation. Citing the cases of Mahmut Aslan v. Turkey (no. 74507/01, 2 October 2007) and Ali Kemal Uğur and Others v. Turkey (no. 8782/02, 3 March 2009 ), they complained of the lack of effective remedies enabling them to complain of the length of proceedings. 154. Mr Özel and Mrs Akan further submitted, as regards the administrative compensation proceedings, that in the instant case the administrative courts had applied the deadline for administrative decisions rather than the deadline set out in Article 13 of the Code of Administrative Procedure. They pointed out that those courts had not applied the one-year deadline – which they claimed was contrary to domestic case-law – which was why their claim had been rejected. The applicants considered that that rejection was contrary to domestic law and jurisprudence, and, moreover, had been geared to protecting the administrative authorities. B. The Court ’ s assessment 155. As a preliminary note, the Court considers it useful to emphasise that although the Government ’ s submissions as to the non- exhaustion of domestic remedies broadly related to the application as a whole, they specifically concern Article 2 of the Convention and should therefore be examined under that provision. 156. Similarly, having regard to the legal classification of the facts in the present case ( see paragraph 145 above ), the Court considers that the Government ’ s submissions to the effect that redress was afforded for the applicants ’ complaint under Article 13 of the Convention ( see paragraph 150 above ) come under the procedural head of Article 2 of the Convention and should be dealt with before the examination of the merits of the case. 1. The applicants ’ victim status 157. The Court reiterates that a decision or measure favourable to the applicant does not in principle deprive the individual concerned of his status as a victim for the purposes of Article 34 of the Convention, unless the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress ( see, for example, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-180, ECHR 2006 ‑ V; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 259, ECHR 2012 [ extracts ] ). Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application ( see Eckle, cited above, §§ 69 et seq. ). 158. In the instant case the Government relied on the criminal conviction of the developers responsible for the buildings which collapsed to argue that a remedy had been provided for the applicants ’ complaint. However, having regard to the nature of the procedural requirements of Article 2 and the fact that the developers ’ conviction cannot be construed as providing any kind of compensation, the Court rejects the Government ’ s submission in this regard. 2. Exhaustion of domestic remedies 159. The Court reiterates that the obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness ( see Vučković and Others v. Serbia [GC], no. 17153/11, § 71, 25 March 2014 ). To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success ( ibid. , § 74). However, there is no obligation to have recourse to remedies which are inadequate or ineffective. Nevertheless, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress ( ibid. , §§ 73 ‑ 74). 160. Nonetheless, the Court has frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism ( see Ringeisen v. Austria, 16 July, § 89, Series A no. 13, and Vučković and Others, cited above, § 76). It has, moreover, accepted that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case ( see Kurić and Others, cited above, § 286). 161. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies ( see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000 ‑ VII). 162. Furthermore, where an applicant has a choice between different possible remedies whose comparative effectiveness is not immediately obvious, the Court tends to construe the requirement to exhaust domestic remedies in the applicant ’ s favour ( see Manoussakis and Others v. Greece, 26 September 1996, § 33, Reports 1996 ‑ IV, and Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III). 163. As regards the burden of proof, it is incumbent on the Government pleading non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was indeed exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement ( see Vučković and Others, cited above, § 77). 164. In the instant case, in the first part of the preliminary objection raised by the Government, as regards, firstly, the applicants ’ complaint about the dilatoriness and inefficiency of the rescue operations immediately after the earthquake ( see paragraph 140 above ), the Court notes from the evidence available to it that the applicants did not specifically contact the national authorities to criticise and complain about the alleged shortcomings in the organisation and implementation of the emergency relief. Consequently, that complaint must be dismissed for non- exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. 165. Secondly, as regards the other complaints under Article 2 of the Convention, the Court notes from the case file that the applicants raised the complaints which were subsequently submitted to it on several occasions during various sets of proceedings before the domestic criminal, civil and administrative courts ( for details of the proceedings in question, see paragraphs 24-82, 88-99 and 104 ‑ 131). As regards their alleged failure to rely specifically on provisions of the Convention, the Court notes that the different types of proceedings brought and the memorials submitted to the domestic courts covered the very substance of the rights relied upon in the proceedings before it. Accordingly, it considers it should reject the Government ’ s objection to the effect that the applicants had failed to submit even the substance of their complaints to the domestic courts. 166. As to the second section of the Government ’ s objection that the applicants should have engaged the objective responsibility of the authorities before the domestic courts, the Court reiterates that it has previously found that under Article 125 of the Constitution, objective responsibility is engaged when it has been established that, in the specific circumstances of a given case, the State has failed in its obligation to preserve public order and security and/or to protect people ’ s lives and property, without the need to establish the existence of criminal negligence attributable to the public authorities (see, among other authorities, Kavak v. Turkey, no. 53489/99, § 32, 6 July 2006). The Court further emphasises that no compensation could be awarded under the remedy in question. The Court reiterates that where one remedy has been used, it is not necessary to exercise another remedy with virtually the same aim ( see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 84, 24 January 2008). In the present case it notes from the case file and other information available to it that Mrs Akan and Mr Özel attempted to bring an action for damages before the administrative courts ( see paragraphs 104-106). Furthermore, they applied to the civil courts for compensation for the pecuniary and non ‑ pecuniary damage resulting from their relative ’ s death ( see paragraphs 110 ‑ 120). The Court notes that Mrs Yüce (Ergüden) and Mr Çakır also brought an action for damages ( see paragraphs 121 ‑ 131 above ). Therefore, it holds that those applicants cannot be criticised for not having also brought an action against the State before the administrative courts, which action could only have led to the award of damages. 167. As regards the other applicants, the Court reiterates that it is for the Government raising the non-exhaustion objection to convince the Court that the remedy was effective and available both in theory and in practice at the material time. It also reiterates that it must apply that rule with due regard to the context and also the applicant ’ s personal situation, and examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies ( see Salman v. Turkey [GC], no. 21986/93, § 86, ECHR 2000 ‑ VII). In that respect, the insecurity and vulnerability of an applicant ’ s position should also be borne in mind ( see Menteş and Others v. Turkey, 28 November 1997, § 59 in fine, Reports 1997 ‑ VIII). In the present case, given the extent of the disaster which had given rise to the complaints and its tragic consequences for the applicants, the particular vulnerability in which they found themselves after the earthquake, and the fact that during the criminal proceedings they lodged memorials claiming civil damages in the framework of the latter ( see paragraphs 34, 38 and 63 above ), bringing the matter of the State ’ s responsibility to the attention of the authorities did not depend solely on the applicants ’ diligence ( see, mutatis mutandis, Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 112, ECHR 2008 [ extracts ] ). Furthermore, the Court can but note that the Government failed to submit any examples of cases where that remedy had been successfully used in a comparable situation. In view of the foregoing observations, it must also reject that section of the Government ’ s objection. 168. Lastly, as regards the final part of the Government ’ s objection to the effect that the applicants had failed to bring any civil action for damages against specified persons, the Court reiterates, as noted previously ( see paragraph 166 above ), that Mrs Akan, Mrs Yüce (Ergüden), Mr Özel and Mr Çakır applied to the civil courts for compensation for the pecuniary and non-pecuniary damage resulting from the deaths of their relatives. As regards the other applicants, that is to say Mr and Mrs Erdoğan and Mr and Mrs Kılıç, the Court observes that they submitted that they had waived recourse to that remedy owing to its ineffectiveness – relating to the length of the relevant proceedings – and high cost. Having regard to the circumstances of the case and the parties ’ s submissions, the Court considers that this section of the objection raises issues intimately linked to the merits of the complaints raised by by the applicants. It therefore decides to join it to the merits ( see paragraph 199 below ). III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 169. The applicants alleged a violation of Article 2 of the Convention, which provides: “ 1. Everyone ’ s right to life shall be protected by law ... ” A. As regards the applicability of Article 2 of the Convention 170. The Court reiterates that Article 2 of the Convention requires the State not only to refrain from intentionally causing deaths but also to take appropriate steps to safeguard the lives of those within their jurisdiction. That obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, but it also applies where the right to life is threatened by a natural disaster ( see Budayeva and Others, cited above, §§ 128-130). 171. In that respect, the Court pointed out, in connection with natural hazards, that the scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation, and clearly affirmed that those obligations applied in so far as the circumstances of a particular case pointed to the imminence of a natural hazard that had been clearly identifiable, and especially where it concerned a recurring calamity affecting a distinct area developed for human habitation or use (ibid. , § 137). Therefore, the applicability of Article 2 of the Convention and the State ’ s responsibility have been recognised in cases of natural disasters causing major loss of life. In the instant case, the applicants ’ complaints must be assessed under the substantive and procedural heads of Article 2 of the Convention. 172. The Court holds that the applicants ’ complaints require it to adjudicate first of all on the obligation to prevent disasters and protect populations from the effects of such events. The Court will then examine the applicants ’ allegation that not all the persons involved in the construction of the buildings in question had been prosecuted, and their complaint regarding the conduct of the criminal proceedings. B. Admissibility 1. Prevention of disasters and protection of the population from the effects of disasters 173. The Court observes that earthquakes are events over which States have no control, the prevention of which can only involve adopting measures geared to reducing their effects in order to keep their catastrophic impact to a minimum. In that respect, therefore, the prevention obligation comes down to adopting measures to reinforce the State ’ s capacity to deal with the unexpected and violent nature of such natural phenomena as earthquakes. 174. In that context, the Court considers that prevention includes appropriate spatial planning and controlled urban development. In the present case it notes from the case file that the national authorities were perfectly well aware of the earthquake risk in the affected region. The spatial planning documents for the regions therefore included the relevant information and the earthquake-hit area had been classified as a “ disaster zone ”. Furthermore, building permits in that area had been subject to special conditions, and consequently all buildings erected had to comply with specific building standards. The local authorities responsible for regulating land use by issuing building permits therefore had a frontline role in risk prevention and bore the primary responsibility for it. 175. Under the circumstances of the instant case, the Court observes that the earthquake had disastrous consequences in terms of loss of life owing to the collapse of buildings erected in breach of the safety and construction standards applicable to the area in question. It would seem to be established, in the light of the findings of the proceedings before the domestic authorities responsible for investigating the matter, that the local authorities which should have supervised and inspected those buildings had failed in their obligations to do so. 176. The Court notes that before the earthquake the Mayor of Çınarcık and the municipal Director of Technical Services had been prosecuted for having amended the urban planning schemes in breach of the requisite procedures and that they had been convicted of the corresponding offences ( see paragraphs 83-86 above ). Moreover, the responsibility of the public authorities for the collapse of the buildings in the earthquake zone had been acknowledged in various expert reports and by a Parliamentary Commission ( see paragraphs 45 and 137 above ). Yet the Interior Ministry decision to authorise an investigation of the public officials involved was set aside under a final decision of the Council of State on 4 October 2000. That fact was noted in the minutes of the hearing organised by the Assize Court on 11 April 2002, on which date it may be held that all the applicants could have been aware of it ( see paragraph 55 above ). Furthermore, the application submitted by Mrs Akan and Mr Özel to set aside the Council of State decision of 4 October 2000 and reopen the proceedings against the public officials involved was dismissed by the Council of State on 14 January 2003 ( see paragraph 96 above ). 177. Even supposing that that remedy might be taken into account under the procedural requirements of Article 2 of the Convention, it should be noted that the applications were lodged on 16, 22 and 25 April 2005, that is to say more than six months after the 4 October 2000 decision, more than six months after the Assize Court hearing of 11 April 2002, and more than six months, even, after the decision of 14 January 2003. Moreover, Mrs Akan and Mr Özel had clearly been informed of the possibility of applying to the Court in the 6 April 2004 decision of the Provincial Human Rights Committee, which they nonetheless also refrained from doing until 16 April 2005. 178. Although in its observations the Government did not submit any objection as to inadmissibility owing to non- compliance with the six - month time-limit, the Court reiterates that it has previously found that the six ‑ month rule is a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion ( see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012), even if the Government has not objected on that basis ( see Paçacı and Others v. Turkey, no. 3064/07, § 71, 8 November 2011). Accordingly, having regard to the aforementioned findings concerning the date on which the six- month time-limit began in respect of Mrs Akan and Mr Özel ( see paragraph 176 above, in fine ) and concerning the date on which the other applicants could be deemed to have been informed of the setting aside of the authorisation to investigate the public officials ( see paragraph 176 above ), the Court considers that that part of the complaint was submitted out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 2. The conduct of the criminal proceedings 179. Noting that this part of the application is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other ground, the Court declares it admissible. C. Merits 180. Having regard to the findings set out above concerning the applicants ’ complaints vis-à-vis the obligation to prevent disasters, to protect populations from the effects of disasters and to provide immediate relief and implement emergency measures ( see paragraphs 164 and 178 above ), the Court must now adjudicate exclusively on the applicants ’ allegations regarding the conduct of the criminal proceedings, which come under the procedural head of Article 2 of the Convention. 1. The applicants ’ submissions a) Mr Çakır, Mr Özel and Mrs Akan ’ s submissions 181. The applicants submitted that the criminal proceedings conducted in the present case had not led to the conviction of all the persons whom they considered responsible in accordance with their respective responsibilities : they argued that the criminal justice system had been inoperative owing both to the inadequacy of legislation on natural disasters and to the implementation of the provisions on statutory limitation. Furthermore, contrary to the Government ’ s assertions, not all those persons had been prosecuted and convicted. In that connection, the applicants submitted that despite the existence of an arrest warrant against D.B. and the passing of many years since the material time, the latter had not been arrested and had not taken part in proceedings. They added that the same applied to C.G. and Z.C. Moreover, of the five persons prosecuted during the criminal proceedings four had benefited from a stay of prosecution, including a partial stay as regards İ.K. on the grounds of statutory limitation. 182. The applicants further submitted that the State ought to have punished the public officials responsible for the deaths of their relatives, explaining that the expert opinions had established the respective responsibilities but that the prosecutions had still not been authorised. b) Mr and Mrs Kılıç ’ s, Mr and Mrs Erdoğan ’ s and Mrs Yüce ’ s (Ergüden ’ s ) submissions 183. The applicants submitted that the State had failed in its duty to arrest and try in good time the individuals whom they considered responsible, enabling the latter to benefit from the provisions on statutory limitation. 184. Furthermore, the applicants considered that the failure to prosecute the public officials whose responsibility had been established under an expert opinion had infringed the right to an effective remedy. In that context they complained that the current legislation was such as to render impossible the prosecution of certain public officials, even though their responsibility had been established by experts. 2. The Government ’ s submissions 185. Citing the principles set out in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, §§ 91-92, ECHR 2004 ‑ XII) regarding the requisite judicial responses to allegations of violations of the right to life, the Government stated that in the present case the domestic authorities had conducted an in-depth investigation. Expert studies had been conducted and reports had been prepared, on which the parties had been able to submit their observations. Furthermore, the domestic courts had examined the requests to claim civil damages under the proceedings and assessed whether or not those civil claimants had actually been involved in the case. Finally, the courts had gathered and scrutinised the requisite evidence. 186. The Government considered that the present case was characterised by the promptness with which the authorities had instigated the investigation, to which fact they attached great importance. They pointed out that the record of the inspection of the site had been prepared on 24 and 25 August 1999, that V.G. had been heard on 6 September 1999 and that the indictment and the additional indictment had been drawn up on 16 September 1999 and 22 September 2000 respectively. They further submitted that no delay in the conduct of the criminal proceedings could be laid at the door of the domestic authorities and that the transfer of the case to Konya had not impeded the applicants ’ participation in the proceedings. They therefore submitted that there had been no violation of Article 2 of the Convention. 3. The Court ’ s assessment a) General principles 187. The Court reiterates that it should in no way be inferred that Article 2 of the Convention may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence ( see Öneryıldız, cited above, § 96) or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence. On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence in and ensuring public adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts ( see Nencheva and Others v. Bulgaria, no. 48609/06, § 116, 18 June 2013). 188. The Court further emphasises that Article 2 requires the authorities to conduct an official investigation in the context of dangerous activities when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents ( see Öneryıldız, cited above, § 93). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ( see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 71, ECHR 2002 ‑ II, and Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII). 189. The Court also reiterates that the principles developed in relation to judicial responses to incidents resulting from dangerous activities also lend themselves to application in the area of disaster relief. Where lives are lost as a result of events engaging the State ’ s responsibility for positive preventive action, the judicial system required by Article 2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied to the extent that this is justified by the findings of the investigation ( see Budayeva, § 142). In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue (ibid. , § 142). 190. Furthermore, the requirements of Article 2 of the Convention go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law ( see Öneryɪldɪz, citéd above, § 95, and Budayeva, citéd above, § 143). b) Application of the principles to the present case 191. The Court reiterates that the procedural obligation under Article 2 of the Convention is not dependent on whether the State is ultimately found to be responsible for the deaths in question ( see Šilih v. Slovenia [GC], no. 71463/01, § 156, 9 April 2009). The procedural obligation under Article 2 on conducting an effective investigation has evolved into a separate and autonomous duty (ibid. , § 159, and G.N. and Others v. Italy, no. 43134/05, § 83, 1 December 2009 and the cases cited therein ). 192. In the present case, the Court observes that criminal proceedings were commenced against the property developers responsible for the buildings which had collapsed and certain individuals directly involved in their construction. It also notes that the proceedings concerned the deaths of 195 persons. The cases were initially split up into different investigation files, and were then gradually joined and later separated again ( see paragraphs 46, 62, 73 and 74 above ). However, the various sets of proceedings at issue all originated in the same facts, that is to say the defects in the buildings which had collapsed, so that the Court considers that it must adjudicate on one single investigation, regardless of the joinder or severance of the various sets of proceedings over time. 193. The Court further observes that the applicants took part in the criminal proceedings in question and applied to intervene in them as third parties. These criminal proceedings against five accused, which began on 14 September 1999, ended on 15 December 2011, almost twelve years later, with the conviction of only two of the accused, one of whom was, moreover, granted the benefit of a partial stay of proceedings on grounds of statutory limitation ( see paragraphs 73 ‑ 79 above ). Two of the accused were untraceable for several of those twelve years ( see paragraph 62 above ), one of whom was D.B., who was in fact never brought before the criminal authorities, so that his involvement in the impugned acts was at no point assessed by the courts. Furthermore, the criminal proceedings against three of the accused were discontinued as statute-barred ( see paragraph 80 above ) before any responsibility on their part for the impugned acts could be established. 194. The Court reiterates that the mere passing of time can work to the detriment of the investigation, and even fatally jeopardise its chances of success ( see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011). It also emphasises that the passing of time will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the complainants ( see Paul and Audrey Edwards, cited above, § 86). 195. While acknowledging that the undeniable complexity of the case owing to the number of victims involved, the Court notes that there were only five accused persons and that the expert reports pinpointing the defects and other factors leading to the collapse of the buildings in question, as well as the corresponding responsibilities, had been prepared very promptly, that is to say in August 1999 ( see paragraphs 20-21 above ) and October 2000 ( see paragraph 45 above ). It notes, however, that a further request for an expert study issued by the Assize Court on 3 May 2001 had not been met until 5 July 2004 ( see paragraph 65 above ), that is to say almost three years two months later. 196. Nevertheless, the importance of what was at stake in the investigation conducted in the present case in terms of identifying the responsibilities in issue, the circumstances under which the aforementioned buildings had been erected and the reasons for their collapse should have prompted the domestic authorities to address the matter rapidly in order to prevent any appearance of collusion in or tolerance of unlawful acts. 197. Even in the presence of obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law ( see Šilih, cited above, § 1 9 5 ). In the present case, the Court can only note that the length of the proceedings at issue breaches the requirement of a prompt examination of the case, without any unnecessary delays. The criminal proceedings were conducted in such a way that only two of the accused were finally declared responsible for the events, the other three having benefited from the statute of limitation. 198. Furthermore, the Court reiterates that it has already accepted, in the light of Article 2 of the Convention, that the failure to indict and prosecute persons holding public office owing to a refusal by the administrative authorities to authorise such action raised issues under Article 2 of the Convention (see, for example, Asiye Genç v. Turkey, no. 24109/07, § 83, 27 January 2015). In the present case, it notes the failure of the attempts by some of the applicants to ensure that the competent authorities ordered a criminal investigation of the public officials (see paragraphs 88-99 above). In this respect, the Court observes that in the absence of prior administrative authorisation, no such criminal investigation was instigated against the public officials whose shortcomings and failures in supervising and inspecting the buildings which collapsed – as noted under an expert study ( see paragraph 45 above ) and registered by the Minister of the Interior ( see paragraph 87 above ) – might otherwise have been established. 199. As regards the applicants ’ ability to bring an action for damages against the individuals who had been involved in the construction of the buildings which collapsed, the Court reiterates that the State ’ s obligation under Article 2 of the Convention will only be satisfied if the protection afforded by domestic law operates effectively in practice ( see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 53, ECHR 2002 ‑ I, and Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006). In the instant case, however, the Court can only note that those applicants who sought to use the civil compensation remedies had to wait between eight and twelve years ( see paragraphs 110-131 above ) for the civil courts to deliver their judgments. The Court also emphasises the modesty of the amounts awarded to the applicants in question in respect of the non-pecuniary damage caused by the loss of their relatives, in the light of its own case-law in such matters. It therefore concludes that in the particular circumstances of the present case, the civil compensation remedy was not an effective legal remedy and accordingly rejects the Government ’ s preliminary objection in that respect. 200. In the light of the foregoing considerations, the Court finds a violation of Article 2 of the Convention under its procedural head. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 201. The applicants complained that the proceedings had been unfair and that they had not benefited from an effective remedy in order to obtain compensation for the damage sustained. They relied on Articles 6 and 13 of the Convention. Finally, the applicants considered that there had been a violation of Article 1 of Protocol No. 1 to the Convention. 202. The Government contested the applicants ’ allegations. 203. Having regard to its finding of a violation under Article 2 of the Convention ( see paragraph 200 above), the Court considers that it has examined the main legal issue arising in the present case. In the light of the overall facts of the case and the parties ’ submissions, it holds that there is no need to adjudicate separately on the admissibility or the merits of the other complaints under Articles 6 and 13 of the Convention or under Article 1 of Protocol No. 1 to the Convention ( see, for a similar approach, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 204. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damages 205. Mr Özel claimed TRL 40,000 in respect of pecuniary damage and TRL 500,000 in respect of non-pecuniary damage resulting from the death of his mother. 206. Mrs Akan claimed TRL 40, 000 in respect of the pecuniary damage which she had sustained. She also claimed TRL 500, 000 in respect of the non-pecuniary damage resulting from her mother ’ s death, as well as the suffering, fear and trauma caused by the fact that her nine-year-old daughter had been buried in rubble for several hours. She further claimed TRL 23, 000 in respect of pecuniary damage for her and her lawyer ’ s travel and accommodation expenses incurred in order to follow the criminal proceedings, as well as TRL 5, 000 in respect of pecuniary damage for the costs incurred by her lawyer in following the proceedings in Ankara before the Interior Ministry and the Council of State. Furthermore, she claimed TRL 20,000 in respect of pecuniary damage corresponding to the value of the furniture which she stated was lost in her apartment during the earthquake. Finally, she claimed TRL 300, 000 in respect of non-pecuniary damage sustained by her daughter. 207. Mr Çakır claimed TRL 18, 000 in respect of travel expenses incurred in order to follow the criminal proceedings. He provided photocopies of train tickets as vouchers. He also claimed TRL 20,000 corresponding to the value of the property which had been destroyed in the apartment that he had lost. He had not been able, owing to the passing of time, to provide an exhaustive list of the property in question or any documents indicating its value. He further claimed a sum of US$ 90, 000 in respect of loss of earnings caused by his presence during the criminal proceedings. Mr Çakır also claimed TRL 750, 000 in respect of non ‑ pecuniary damage sustained on account of the death of his son and the anxiety which he had suffered until four days after the earthquake, when he had personally pulled his son out of the rubble of the building. He also submitted that he had been covered by rubble for some ten hours and had been very afraid, with the result that he now suffered from claustrophobia. Similarly, he stated that he suffered from feelings of anxiety and sadness related to the fact that his wife had been buried in the rubble for eight hours. He also pointed out that he had been greatly fatigued by the journeys which he had had to make in order to follow the proceedings, emphasising the length of the latter. 208. Mr and Mrs Kılıç claimed TRL 250, 000 each in respect of the non ‑ pecuniary damage caused by the death of their son and TRL 250,000 each in respect of the resultant loss of financial support. In respect of the pecuniary damage resulting from the journeys undertaken by their lawyer in order to following the proceedings, they also claimed TRL 18, 000 jointly in respect of the criminal proceedings in Konya and TRL 5, 000 jointly in respect of the administrative proceedings in Yalova. 209. Mr and Mrs Erdoğan claimed TRL 250, 000 jointly in respect of the non-pecuniary damage caused by the death of their son and TRL 250, 000 in respect of the resultant loss of financial support. In respect of the pecuniary damage corresponding to the journeys undertaken by their lawyer in order to follow the proceedings, they also claimed TRL 18, 000 jointly in for the criminal proceedings in Konya and TRL 5, 000 jointly for the administrative proceedings in Yalova. 210. Mrs Yüce (Ergüden) clamed TRL 500,000 in respect of the non ‑ pecuniary damage resulting from the loss of her parents, as well as TRL 500,000 for her personal suffering caused by the long hours which she had spent buried in the rubble, the fear which that had inspired, the cost of the psychological support which she had had to seek and the exhaustion of having had to travel in order to follow the proceedings. In respect of the pecuniary damage caused by her travel in order to follow the proceedings, she claimed TRL 36, 000 for the proceedings in Konya and TRL 5, 000 for those in Yalova. She also claimed TRL 120, 000 in respect of pecuniary damage corresponding to the value of her apartment and the furniture which she had lost during the earthquake, as well as TRL 30, 000 in respect of pecuniary damage corresponding to her share in the inheritance of her mother ’ s apartment and the furniture appertaining to the latter. 211. The Government contested those claims on the grounds that the applicants had not provided vouchers substantiating their claims in respect of the alleged pecuniary damage. They added that the applicants ’ claims in respect of non- pecuniary damage were unacceptable, submitting that compensation in respect of just satisfaction should not entail unjust enrichment. 212. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects those claims. On the other hand, it considers it appropriate to award, in respect of non ‑ pecuniary damage, 30, 000 euros (EUR) jointly to Mrs Akan and Mr Özel, EUR 30, 000 jointly to Mr and Mrs Kɪlɪç, EUR 30, 000 jointly to Mr and Mrs Erdoğan, and 30, 000 euros (EUR) to each of the other applicants, namely Mrs Yüce (Ergüden) and Mr Çakɪr. B. Costs and expenses 213. Mr Çakır claimed TRL 15, 000 in respect of miscellaneous costs and expenses relating to the domestic proceedings and US$ 25, 000 dollars in respect of lawyer ’ s fees incurred before the Court and the domestic courts. He also claimed a sum equivalent to 25% of the amount of compensation which might be awarded to him in respect of lawyer ’ s fees before the Court, corresponding to the sum mentioned on the fee agreement which he had concluded with his lawyer. He submitted that document as a voucher. 214. Mr and Mrs Kılıç claimed TRL 15, 000 jointly in respect of miscellaneous costs and expenses relating to the domestic proceedings and US$ 50,000 dollars jointly in respect of lawyer ’ s fees incurred during the domestic proceedings and those brought before the Court. 215. Mr and Mrs Erdoğan claimed TRL 15, 000 jointly in respect of miscellaneous costs and expenses relating to the domestic proceedings and US$ 25,000 dollars in respect of lawyer ’ s fees incurred during the domestic proceedings and those brought before the Court. 216. Mrs Yüce (Ergüden) claimed TRL 15, 000 in respect of miscellaneous costs incurred during the domestic proceedings. She also claimed a sum equivalent to 25% of the amount of compensation which might be awarded to her in respect of lawyer ’ s fees before the Court, corresponding to the sum mentioned on the fee agreement which she had concluded with her lawyer, a copy of which she submitted to the Court. 217. Mr Özel claimed a sum equivalent to 25% of the amount of compensation which might be awarded to him in respect of lawyer ’ s fees, corresponding to the sum mentioned on the fee agreement which he had concluded with his lawyer [9]. 218. The Government contested those claims. They submitted that none of the applicants apart from Mr Çakır had submitted documents in support of their claims. 219. According to the case- law of the Court, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, in the absence of documents sufficiently substantiating their claims, the Court rejects the claims for costs and expenses lodged by Mr and Mrs Kılıç and Mr and Mrs Erdoğan [10]. On the other hand, having regard to the documents at its disposal and to its case ‑ law, the Court considers reasonable the sum of 4, 000 EUR for proceedings before it, and awards that amount to each of the applicants, namely Mr Çakır, Mrs Yüce (Ergüden) and Mr Özel [11]. C. Default interest 220. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 of the Convention under its procedural head, finding in particular that the Turkish authorities had not acted promptly in determining the responsibilities and circumstances of the collapse of the buildings which had caused the deaths. Indeed, the importance of the investigation should have made the authorities deal with it promptly in order to determine the responsibilities and the circumstances in which the buildings collapsed, and thus to avoid any appearance of tolerance of illegal acts or of collusion in such acts. |
316 | Dissolution or prohibition of political parties or associations | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. The Spanish Constitution Article 6 “ Political parties are the expression of political pluralism; they contribute to the formation and expression of the will of the people and are an essential instrument for political participation. Their creation and the exercise of their activities are free in so far as they respect the Constitution and the law. Their internal structure and their functioning must be democratic. ” Article 22 “ 1. The right of association is recognised. 2. Associations which pursue ends or use means legally defined as criminal offences are illegal. 3. Associations set up on the basis of this section must be entered in a register for the sole purpose of public knowledge. 4. Associations may only be dissolved or have their activities suspended by virtue of a court order stating reasons. 5. Secret and paramilitary associations are prohibited. ” B. Law no. 6/1985 of 1 July 1985 – “the LOPJ ” ( as amended by Institutional Law no. 6/2002 of 27 June 2002 on political parties ) Section 61 “ 1. A Chamber comprising the President of the Supreme Court, the different divisional presidents and the most senior and the most recently appointed judge of each division shall examine : ( i ) applications for review of judgments ... ; ( ii ) challenges [ to the President of the Supreme Court, the different divisional presidents, or more than two senior divisional judges ]; ( iii ) civil liability claims against divisional presidents ...; ( iv ) investigation and adjudication of claims against divisional presidents; (v ) allegations of judicial error imputed to a division of the Supreme Court; (vi ) procedures for a declaration of illegality and consequent dissolution of political parties, pursuant to Institutional Law no. 6/2002 of 27 June 2002 on political parties; ... ” C. Institutional Law no. 6/2002 of 27 June 2002 on political parties – “the LOPP ” Section 9 “ 1. Political parties may freely engage in their activities. In engaging in those activities, they shall respect the constitutional values expressed in democratic principles and human rights. They shall perform the functions attributed to them under the Constitution democratically and in full respect for pluralism. 2. A political party shall be declared illegal when, as a result of its activities, it infringes democratic principles, in particular when it seeks thereby to impair or to destroy the system of liberties, to hinder or to put an end to the democratic system, by repeatedly and seriously engaging in any of the conduct described below : ( a) systematically violating fundamental freedoms and rights by promoting, justifying or excusing attacks on the life or integrity of the person, or the exclusion or persecution of an individual by reason of ideology, religion, beliefs, nationality, race, sex or sexual orientation; ( b) fomenting, encouraging or legitimising violence to be used as a means to achieve political ends or as a means to undermine the conditions that make the exercise of democracy, pluralism and political freedoms possible; ( c) providing assistance and political support to the actions of terrorist organisations with the aim of overthrowing the constitutional order or seriously disturbing the public peace, subjecting the public authorities, certain persons or certain groups in society or the population in general to a climate of terror, or contributing to increasing the effects of terrorist violence and the resulting fear and intimidation. 3. The conditions described in the preceding paragraph shall be deemed to have been met where there has been a repetition or an accumulation, by the political party, of one or more of the following instances of behaviour : ( a) giving express or tacit political support to terrorism by legitimising the use of terrorist actions for political ends outside peaceful and democratic channels, or by excusing them or minimising their significance and the ensuing violation of human rights; ( b) accompanying violent action with programmes and activities promoting a culture of civil conflict and confrontation associated with the actions of terrorists or those who resort to intimidation; pressurising, neutralising or socially isolating anyone opposing that violent action, by forcing them to live with a daily threat of coercion, fear, exclusion or deprivation of freedom and depriving them in particular of their freedom to express their opinions and to participate freely and democratically in public affairs; ( c) including regularly in its directing bodies or on its lists of candidates for election persons who have been convicted of terrorist offences and who have not publicly renounced terrorist methods and aims, or maintaining among its membership a significant number of militants who are also members of organisations or bodies linked to a terrorist or violent group, except where it has taken disciplinary measures against them with a view to their exclusion; ( d) using as instruments of its activity, jointly with its own or in place thereof, symbols, slogans or items which represent or symbolise terrorism or violence and conduct associated with terrorism; ( e) conceding to terrorists or to any person collaborating with terrorists the rights and prerogatives which the legal system – and in particular electoral law – grants to political parties; ( f) collaborating habitually with entities or groups which systematically act jointly with a terrorist or violent organisation or which defend or support terrorism or terrorists; ( g) supporting, through government institutions, the entities referred to in the preceding paragraph through administrative, financial or any other measures; ( h) promoting or covering activities the object of which is to reward, pay tribute to or honour terrorist or violent actions or those who commit them or collaborate or participate in them; ( i ) covering disruptive, intimidatory or socially coercive actions that are linked to terrorism or violence. 4. In assessing and evaluating the activities to which this section refers and the continuing nature or repetition thereof in the context of the trajectory of a political party, even if that party has changed its name, account will be taken of the party ’ s decisions, documents and communiqués, its bodies and its parliamentary and municipal groups, the conduct of its public activities and the way in which it calls on citizens to mobilise, demonstrations, interventions and public engagements of its leaders and members of its parliamentary and municipal groups, the proposals formulated within or outside institutions as well as the significant repetition, by its members or candidates, of certain behaviour. Account will also be taken of administrative penalties imposed on the political party or its members and any criminal convictions of its leaders, candidates, elected officials or members for the offences listed in Titles XXI to XXIV of the Spanish Criminal Code and which have not resulted in disciplinary measures leading to the exclusion of the parties concerned.” Section 10 “ ... 2. The judicial dissolution of a political party shall be decided by the relevant court in the following cases : ( a) where the party is considered to be an illegal association for the purposes of the Spanish Criminal Code; ( b) where it continuously, repeatedly and seriously breaches the obligation imposed by sections 7 and 8 of this Institutional Law to have a democratic internal structure and to operate democratically; ( c) where, as a result of its activities, it repeatedly and seriously infringes democratic principles or seeks to impair or to destroy the system of liberties or to hinder or to put an end to the democratic system by means of the conduct referred to in section 9. ... 5. The cases provided for in sub-paragraphs (b) and (c) of paragraph 2 of this section shall be examined by the special Chamber of the Supreme Court created by section 61 of the LOPJ, in accordance with the procedure laid down in the following section of this Institutional Law, which derogates from the LOPJ .” Section 11 “ 1. The government or the public prosecutor may trigger the procedure to have a political party declared illegal and to have it dissolved ... ... 7. No appeal shall lie against a judgment delivered by the special Chamber of the Supreme Court pronouncing dissolution or rejecting an application for dissolution save, as the case may be, an amparo appeal before the Constitutional Court ... ” Sole transitional provision “ ... 2. For the purposes of application of the provisions of paragraph 4 of section 9 to activities subsequent to the entry into force of this Institutional Law, the constitution, on a date immediately prior or subsequent to that date of entry into force, of a political party carrying on the activities of another party or succeeding it with the aim of avoiding application to it of the provisions of this Law, shall be deemed to constitute a fraudulent evasion of statutory provisions. This will not constitute an obstacle to the application of this Law and sections 10 and 11 of this Institutional Law may be applied to the party concerned. The special Chamber of the Supreme Court shall be vested with power to assess continuation or succession and fraudulent intent.” D. European Union law 1. Council Common Position 2003/402/PESC of 5 June 2003, updating Common Position 2001/931/PESC on the application of specific measures to combat terrorism Annex (list of persons, groups and entities referred to in Article 1) “ ... 7. Euskadi Ta Askatasuna /Tierra Vasca y Libertad / Basque Fatherland and Liberty (ETA) [ The following organisations are part of the terrorist group ETA: K.a.s ., Xaki, Ekin, Jarrai-Haika-Segi, Gestoras pro- amnistía, Askatasuna, Batasuna (a .k.a. Herri Batasuna, a .k.a. Euskal Herritarrok ]. ” E. Council of Europe law 1. Resolution 1308 (2002) of the Parliamentary Assembly of the Council of Europe on restrictions on political parties in the Council of Europe member States “ ... 2. The Assembly considers that the issue of restrictions on political parties is by nature a very complex one. However, the tragic events which took place in New York on 11 September 2001 should encourage us to reflect still further on the threats to democracy and freedoms posed by extremism and fanaticism. ... 11. In conclusion and in the light of the foregoing, the Assembly calls on the governments of member States to comply with the following principles : ... ( ii ) restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied only in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country; ... ( v ) a political party should be banned or dissolved only as a last resort, in conformity with the constitutional order of the country, and in accordance with the procedures which provide all the necessary guarantees to a fair trial; ... ” 2. Council of Europe Convention on the Prevention of Terrorism, which entered into force on 1 June 2007, signed and ratified by Spain (entry into force on 1 June 2009) Article 5 – Public provocation to commit a terrorist offence “ 1. For the purposes of this Convention, ‘ public provocation to commit a terrorist offence ’ means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed. 2. Each Party shall adopt such measures as may be necessary to establish public provocation to commit a terrorist offence, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law. ” Article 9 – Ancillary offences “ 1. Each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law : ... ( c) contributing to the commission of one or more offences as set forth in Articles 5 to 7 of this Convention by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either : ( i ) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in Articles 5 to 7 of this Convention; or ( ii ) be made in the knowledge of the intention of the group to commit an offence as set forth in Articles 5 to 7 of this Convention. ... ” Article 1 0 – Liability of legal entities “ 1. Each Party shall adopt such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal entities for participation in the offences set forth in Articles 5 to 7 and 9 of this Convention. 2. Subject to the legal principles of the Party, the liability of legal entities may be criminal, civil or administrative. 3. Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offences .” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 51. The applicant parties alleged that their dissolution had entailed a violation of their right to freedom of association. Describing Institutional Law no. 6/2002 on political parties (“ the LOPP ”) as an ad hoc law, they argued that it was neither accessible nor foreseeable and complained that it had been applied retrospectively. Stating that the purpose of their dissolution had been to eliminate political debate in the Basque Country, they complained that the measure had had no legitimate aim. They argued that it could not be considered necessary in a democratic society and considered it to be in violation of the principle of proportionality. The relevant parts of Article 11 provide : “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association ... 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. . .. ” A. Whether or not there was interference 52. The parties acknowledged that the dissolution of the applicant political parties amounted to interference in the exercise of their right to freedom of association. The Court shares that view. B. Whether that interference was justified 53. Such interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims. 1. “ Prescribed by law ” ( a) The parties ’ submissions 54. The applicant parties argued that the LOPP did not satisfy the criteria of foreseeability and stability required by the Court ’ s case-law. They claimed that it had been applied retrospectively and had therefore been in breach of the principle of legal certainty. 55. The Government submitted that the dissolution of the applicant parties had been based on an existing, accessible and foreseeable law. ( b ) The Court ’ s assessment 56. The Court reiterates that the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct ( see, among other authorities, The Sunday Times v. the United Kingdom ( no. 1), 26 April 1979, § 49, Series A no. 30). Experience shows, however, that it is impossible to attain absolute precision in the framing of laws ( see, for example, Ezelin v. France, 26 April 1991, § 45, Series A no. 202). 57. In the instant case, the Court notes that the Law at issue entered into force on 29 June 2002, the day after its publication in the Official Gazette of the State, and that the dissolution of the applicant political parties was pronounced on 27 March 2003. That Law defined sufficiently clearly the organisation and functioning of political parties and the conduct that could entail their dissolution or suspension by the courts of their activities (see Chapter III of the Law). 58. Turning to the complaint concerning the retrospective application of the Law, the Court finds at the outset that, although all the acts enumerated in the judgment of the Supreme Court having pronounced the dissolution at issue concerned Batasuna, the Supreme Court held Batasuna and Herri Batasuna to be “ in reality a single entity ... hidden behind an apparent plurality of legal entities” (see paragraph 30 above). In those circumstances, the Court considers that the complaint concerns all the applicant parties. 59. As to the merits of the complaint, the Court reiterates that Article 7 § 1 of the Convention guarantees non- retrospectivity only in the context of criminal proceedings, and that the instant case does not concern criminal matters. In any event, the Court notes that the acts taken into account by the Supreme Court in order to pronounce the dissolution of the applicant parties were committed between 29 June and 23 August 2002, that is, after the date of entry into force of the LOPP. Moreover, the Convention contains no provision ruling out the possibility of relying on facts preceding enactment of the Law. 60. Consequently, the Court considers that the interference at issue was “ in accordance with the law ” and that the applicant parties ’ complaints concerning the impugned measure would be better examined from the viewpoint of the need for that interference. 2. “ Legitimate aim ” ( a) The parties ’ submissions 61. The applicant parties submitted that their dissolution had pursued an illegitimate aim in that it had sought to eliminate the Basque political independence movement from political and democratic life. 62. The Government submitted that the dissolution had been a means of preventing the applicant parties from acting against the democratic system and the fundamental freedoms of citizens by supporting violence and the activities of the terrorist organisation ETA. They argued that the applicant parties had constituted a threat to human rights, democracy and pluralism. They denied that the dissolution had been intended to eliminate political pluralism in Spain, and highlighted, as an example, the peaceful coexistence on Spanish territory of several political parties advocating nationalism or independence which engaged in their activities normally. ( b) The Court ’ s assessment 63. The Court considers that the applicant parties have failed to show that their dissolution was motivated by reasons other than those advanced by the national courts. It cannot subscribe to the applicant parties ’ argument that, as far as the Government were concerned, the dissolution had been a means of eliminating any debate concerning the left-wing Basque independence movement. In that connection, it upholds the Government ’ s observations set out in the preceding paragraph and points out that various so-called “separatist” parties coexist peacefully in several autonomous communities in Spain. 64. Having regard to the circumstances of the case, the Court considers that the dissolution pursued several of the legitimate aims referred to in Article 11, notably public safety, the prevention of disorder and the protection of the rights and freedoms of others. 3. “ Necessary in a democratic society ” and “ proportionality of the measure ” ( a) The parties ’ submissions ( i ) The applicant parties 65. Arguing that a declaration of illegality was the only kind of interference provided for by the LOPP to sanction disparate conduct of varying degrees of seriousness, the applicant parties alleged that the Law at issue violated the principle of proportionality. That Law failed to take account of the case-law of the Strasbourg Court intended to ensure that the interference of public authorities in the exercise of the right to freedom of association was in proportion to the seriousness of the impugned conduct and that dissolution be reserved for situations in which the activities of the political party at issue seriously endangered the very survival of the democratic system. 66. The first applicant party argued that, with the exception of its alleged “ operational unity” with Batasuna and EH, no fact warranting its dissolution could be attributed to it. 67. The second applicant party criticised the Supreme Court ’ s judgment of 27 March 2003 for having held that Batasuna ’ s calls to violence were much more explicit than those made by the members of Refah Partisi ( the Welfare Party ), which had been declared illegal by Turkey ( see Refah Partisi ( the Welfare Party ) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003 -II ), and for having relied on that difference to justify the impugned dissolution measure. The second applicant party made the observations below as regards the facts deemed to constitute grounds for dissolution in the judgment in question. – The fact that it had not appointed representatives to the Basque parliamentary committee responsible for examining the situation and needs of victims of terrorism had amounted to a manifestation of the right to freedom of thought and was not of the “ particularly serious ” nature required by the LOPP to dissolve a political party. – A.O. ’ s statements in response to the judgment of central investigating judge no. 5 at the Audiencia Nacional having found the applicant party civilly responsible for acts of street violence ( kale borroka ) had merely amounted to a manifestation of the right to freedom of expression of the applicant political party, against which, moreover, the Spanish authorities had taken no criminal action. – As regards A.O. ’ s participation in a tribute to Basque fighters who were victims of Fascism during the civil war, organised by Basque Nationalist Action, a legal political party, no such activity was listed among the grounds for dissolution provided for by the LOPP and it could not therefore be criticised by the Government, as they had done in their observations. – The participation of a Batasuna mayor and councillor in a demonstration in support of ETA members resident in Venezuela could not be taken into account to justify the dissolution since that demonstration had not been banned by the Basque government. Furthermore, the criminal proceedings brought against the participants had resulted in their acquittal and the events had not even given rise to an administrative penalty. – Although the statements of Batasuna ’ s municipal spokesperson in San Sebastian had contained expressions which could be deemed “capable of offending, undermining or disrupting the State ” they had been protected by the freedom of expression enjoyed by active members of a political party. – The courts had interpreted the statements made by Batasuna ’ s spokesperson in the municipality of Vitoria subjectively, whereas that person ’ s conduct should have been protected by the right to freedom of expression. – The information establishing the refusal of elected members of Batasuna to condemn the threats received by certain leaders of other political organisations during a meeting of the council of the municipality of Amorebieta had been based on a press article and had not been checked against the minutes of the meeting. Therefore, that ground for illegality had been based on a mere presumption. – As regards the press conference organised by the mayor and the chairman of the Ondarroa Human Rights Committee concerning the return to Spain of an ETA member convicted in France, in relation to which the Supreme Court had considered that explicit political support had been given to the ETA member in question, deemed to be a “ victim of political reprisals ”, that information had been based exclusively on a press article and could not be taken into account. It had been based on a value judgment of the journalist who had written the article. The conference in question had not been organised by Batasuna and it was the sister of the ETA member concerned who had spoken. No statement could be attributed to the town ’ s mayor. In any event, it had been a manifestation of ideological and political freedom which should not have been taken into account in the process of declaring a political party illegal. – As regards Batasuna ’ s refusal to condemn the fatal attack carried out by ETA at Santa Pola, the national courts, when examining that ground for illegality, had merely taken account of random expressions used in the applicant ’ s speech without considering it as a whole and without carrying out an “ acceptable assessment of the relevant facts ”, thus disregarding the Court ’ s case-law (see Dicle for the Democratic Party ( DEP ) of Turkey v. Turkey, no. 25141/94, § 57, 10 December 2002 ). In that connection, it would appear that the judgment of the Supreme Court had concluded that there had been a “minimum standard”, an implicit set of codes of behaviour requiring the applicant party to expressly condemn the attacks. However, since those codes had not been explicit, the applicant party ’ s behaviour could at most have attracted social censure, but not a political sanction. – As regards the use of the anagram of “ Gestoras Pro- Amnistía ” ( an organisation appearing on the European list of terrorist organisations) in the municipalities run by Batasuna, the Government ’ s argument that that could be “ easily associated with the use of terrorist violence and those who engage in it” was debatable. The logos in question had contained no reference to ETA and it had merely amounted to a manifestation of ideological freedom. – As regards the attitude of Batasuna ’ s leaders during a demonstration in San Sebastian in 2002, the Government ’ s allegations that the pro-ETA slogans had emanated from the leaders in question were unfounded. They had been off-the-cuff remarks that could not be deemed to be linked to terrorism and which, in any event, were not of the particular degree of seriousness required by law to constitute a cause of dissolution. Furthermore, no criminal action had been taken against the organisers. – As to displaying posters in support of terrorism on the facades of Batasuna -run town halls, the posters in question had been put up only in a minority of town halls. Consequently, that should not have been characterised as “ repeated behaviour ” for the purposes of the LOPP. – A.O. ’ s statements during a Batasuna press conference in Bilbao had concerned a “political evaluation” of the judicial decision to trigger a procedure to suspend Batasuna ’ s activities. The criticism of the State at that conference had been harsh and hostile. However, in accordance with the Court ’ s case-law, those statements “ could not in themselves constitute evidence that [a] party was equivalent to armed groups implicated in acts of violence ” ( see Dicle for the Democratic Party (DEP) of Turkey, cited above, §§ 59 and 60). Furthermore, A.O. had been acquitted of the criminal charge of making terrorist threats. Therefore, the impugned statements had been made in the context of a political leader exercising his freedom of expression in describing his particular vision of the Spanish State. – Statements made by of one of Batasuna ’ s leaders and published in a Basque newspaper had simply criticised the Government and had not gone beyond the bounds of freedom of expression. – As regards the statements made by a Batasuna leader at a meeting organised by the party to protest against its dissolution, the leader in question had merely “ done his duty in noting the concerns of the electorate” ( ibid., § 60 ) faced with the seriousness of a potential declaration of illegality of the organisation of which he was a member. The criticisms had been made in the context of a political debate concerning a matter of general interest, namely, the declaration of illegality of a political organisation representing a large part of Basque society. Since the criminal proceedings brought on that occasion had been dropped, once again it had amounted to a manifestation of freedom of expression. – The tributes to terrorists who had been made honorary citizens ( hijos predilectos ) had not been organised by Batasuna. Moreover, those events had occurred after 26 August 2002, the date on which the activities of Batasuna and Herri Batasuna had been suspended, and had amounted to a manifestation of freedom of expression. – As regards the harassment of the municipal representatives of non-nationalist parties attributed to members of Batasuna in certain municipalities, the involvement of the applicant party in the events at issue had not been proved before the national courts. – There was no evidence of the alleged existence of graffiti, posters and placards inciting militancy against the State in certain municipalities run by Batasuna. In any event, the texts and content of those items could not be considered to be referring to violence or terrorism but had to be seen as mere expressions of ideology. 68. An analysis of those eighteen incidents, separately or together, showed that they had not warranted a measure as severe as the dissolution of a political party. Furthermore, the dissolution measure had clearly been disproportionate to the aim pursued. As stated by the first applicant party, the dissolution of a political party was the only interference in the exercise of the right to freedom of association provided for by the LOPP, which made no provision for any intermediate sanction and did not allow for account to be taken of the seriousness of the alleged offences. Dissolution should be pronounced only where the activities of a party seriously jeopardised the survival of the democratic system. 69. In the light of the foregoing, the dissolution had amounted to interference in the exercise of the right to freedom of association that had not been prescribed by law. Moreover, that measure had not pursued a legitimate aim and had not been necessary in a democratic society. 70. In the alternative, the fact remained that the arguments submitted under Article 11 were also valid for Article 10 and that a violation of that provision should also be found. ( ii ) The Government 71. The Government pointed out that section 9 (2) of the LOPP provided that dissolution could only be pronounced in cases in which the conduct referred to therein was serious and repeated. 72. They submitted that the measure had been necessary to preserve democracy in Spanish society, and cited in that connection the Court ’ s case-law according to which democracy was a fundamental feature of the European public order. They listed various factors which in their view warranted the adoption of such a serious measure, namely, the dissolved parties ’ explicit calls to violence, the high number of deaths from attacks carried out by ETA, the statements of the leaders of the dissolved parties, the use of certain symbols, the inclusion of individuals convicted of terrorist offences on the membership lists of the parties concerned and the acts and manifestations of support for terrorist activity. Moreover, the Government argued, having regard to the actual political nature of the parties in question, that the Supreme Court had struck a fair balance between the interests at stake in concluding that the applicant parties had constituted a threat to democracy. 73. In that connection, the Government stressed that the applicant parties had justified assassinations carried out by ETA, that they had legitimised violence as a means of achieving political objectives and that they had inflicted a climate of terror on citizens opposed to the demands of those who, like them, were part of the terrorist milieu (revolutionary tax). In that context, the Government referred to the case of Gorzelik and Others v. Poland ( [GC], no. 44158/98, § 96, ECHR 2004-I ) and pointed out that it was in the first place for the national authorities to assess whether there had been a “pressing social need” to impose a restriction on the rights guaranteed by Articles 10 and 11, without prejudice to any supervision by the Court. ( b) The Court ’ s assessment ( i ) General principles 74. The Court observes at the outset that, notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy ( see Partidul Comunistilor ( Nepeceristi ) and Ungureanu v. Romania, no. 46626/99, § 44, ECHR 2005 -I ). 75. When it exercises its supervision in this regard, the Court ’ s task is not to take the place of the competent national authorities but rather to review under Article 11 the decisions they delivered pursuant to their power of appreciation. This does not mean that the Court ’ s supervision is limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. It must look at the interference complained of in the light of the case as a whole in order to determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts ( see, for example, Sidiropoulos and Others v. Greece, 10 July 1998, Reports of Judgments and Decisions 1998 ‑ IV; United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports 1998 ‑ I; and Partidul Comunistilor ( Nepeceristi ) and Ungureanu, cited above, § 49 ). 76. According to a well - established principle of the Court ’ s case-law, there can be no democracy without pluralism. The Court considers one of the principal characteristics of democracy to be the possibility it offers for debate through dialogue, without recourse to violence, of issues raised by various tides of political opinion, even when they are troubling or disturbing. Democracy thrives on freedom of expression. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among many other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Jersild v. Denmark, 23 September 1994, § 37, Series A no. 298). The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention. (see United Communist Party of Turkey and Others, cited above, §§ 42 and 43). 77. The exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see, for example, Sidiropoulos and Others, cited above, § 40). That is especially so in relation to political parties in view of their essential role in “a democratic society” ( see, for example, United Communist Party of Turkey and Others, cited above §§ 25, 43 and 46). 78. Moreover, it is well established in the Court ’ s case-law that drastic measures, such as the dissolution of an entire political party, may only be taken in the most serious cases ( see Refah Partisi (the Welfare Party) and Others, cited above; United Communist Party of Turkey and Others, cited above, § 46; Socialist Party and Others v. Turkey, 25 May 1998, § 50, Reports 1998-III; and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 45, ECHR 1999-VIII). That is why the nature and severity of the interference is also a factor to be taken into account when assessing its proportionality ( see, for example, Sürek v. Turkey ( no. 1) [GC], no. 26682/95, § 64, ECHR 1999-IV). 79. That said, the Court also reiterates that a political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must in every respect be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds ( see, mutatis mutandis, Socialist Party and Others, cited above, §§ 46 and 47; Partidul Comunistilor ( Nepeceristi ) and Ungureanu, cited above, § 46; Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II; and Refah Partisi (the Welfare Party) and Others, cited above, § 98 ). 80. Admittedly, the Court has already considered that the constitution and programme of a political party cannot be taken into account as the sole criterion for determining its objectives and intentions. The content of the programme must be compared with the actions of the party ’ s leaders and members and the positions they defend. Taken together, these acts and stances may be relevant in proceedings for the dissolution of a political party, provided that as a whole they disclose its aims and intentions ( see United Communist Party of Turkey and Others, cited above, § 58, and Socialist Party and Others, cited above, § 48 ). 81. The Court nevertheless considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may “reasonably forestall the execution of such a policy, which is incompatible with the Convention ’ s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country ’ s democratic regime” ( see Refah Partisi (the Welfare Party) and Others, cited above, § 102 ). 82. The Court takes the view that such a power of preventive intervention on the State ’ s part is also consistent with Contracting Parties ’ positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within their jurisdiction. Those obligations relate not only to any interference that may result from acts or omissions imputable to agents of the State or occurring in public establishments but also to interference imputable to private individuals within non-State entities. A Contracting State may be justified under its positive obligations in imposing on political parties, which are bodies whose raison d ’ être is to accede to power and direct the work of a considerable portion of the State apparatus, the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy ( ibid., § 103). 83. In this connection, the Court points out that the adjective “necessary”, within the meaning of Article 11 § 2, implies a “pressing social need”. Accordingly, the Court ’ s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a “pressing social need” (see, for example, Socialist Party and Others, cited above, § 49) must concentrate on the following points: ( i ) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently and reasonably imminent; and (ii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a “democratic society” ( see Refah Partisi (the Welfare Party) and Others, cited above, § 104). ( ii ) Application of these principles to the instant case 84. The Court will focus the first part of its examination on ascertaining whether the dissolution of the applicant parties met a “ pressing social need ”. It will then assess, as appropriate, whether that measure was “ proportionate to the legitimate aims pursued ”. In so doing, it will, like the Supreme Court, start from the premise (see paragraphs 30 -33 above) that the two applicant parties constituted “ a single entity”. Accordingly, the reasoning set out below must be deemed to apply to both applicant parties. ( α) Pressing social need 85. The Court observes that in order to pronounce the impugned dissolution, the Supreme Court did not restrict itself to establishing that the applicant parties had not condemned the attacks committed by ETA, but described conduct enabling it to conclude that the parties concerned were instruments of ETA ’ s terrorist strategy. It distinguishes two types of conduct in issue here, namely, conduct having encouraged a climate of social confrontation and conduct having implicitly supported ETA ’ s terrorist activities. It notes, in particular, that during the demonstration organised by Batasuna in San Sebastian on 11 August 2002 and led by A.O., J.P. and J.A., the party leaders, not only had slogans in support of ETA prisoners been heard, but also threatening expressions such as “ borroka da bide bakarra ” ( struggle is the only way ), “ zuek faxistak zarete terroristak ” ( you, the Fascists, are the real terrorists ) or “ gora ETA militarra ” ( long live ETA military ). The Court notes further that in an interview with the newspaper Egunkaria on 23 August 2002, a Batasuna representative in the Basque parliament had stated that “ ETA [ did ] not support armed struggle for the fun of it, but that [it was] an organisation conscious of the need to use every means possible to confront the State”. Lastly, the Court notes the attendance of a Batasuna councillor at a pro-ETA demonstration, the fact that ETA terrorists had been made honorary citizens of towns run by the applicant parties and that the anagram of the organisation “ Gestoras Pro-Amnistía ”, declared illegal by central investigating judge no. 5 at the Audiencia Nacional and included on the European list of terrorist organisations (Council Common Position 2001/931/PESC), had been posted on the website of the second applicant party. 86. As found by the national courts, such conduct bears a strong resemblance to explicit support for violence and the commendation of people seemingly linked to terrorism. It can also be considered to be capable of provoking social conflict between supporters of the applicant parties and other political organisations, in particular those of the Basque country. In that connection, the Court reiterates that in the actions and speeches to which the Supreme Court referred, the members and leaders of the applicant parties had not ruled out the use of force with a view to achieving their aims. In those circumstances, the Court considers that the national courts sufficiently established that the climate of confrontation created by the applicant parties risked provoking intense reactions in society capable of disrupting public order, as has been the case in the past. 87. The Court cannot subscribe to the applicant parties ’ arguments that none of the conduct taken into account by the Supreme Court corresponded to any of the grounds for dissolution of a political party provided for by the LOPP. It considers, in fact, that the actions in question must be considered in their entirety as being part of a strategy adopted by the applicant parties to achieve a political aim essentially in breach of the democratic principles enshrined in the Spanish Constitution, and that they therefore corresponded to the ground for dissolution defined in section 9 ( 2 )( c) of the LOPP, that is, providing assistance and political support to the actions of terrorist organisations with the aim of overthrowing the constitutional order or seriously disturbing the public peace. Moreover, the Court cannot consider that the impugned conduct was covered by the protection afforded to freedom of expression, as claimed by the applicant parties, since the methods used fell outside the bounds set by the Court ’ s case-law, namely the lawfulness of the means used to exercise that right and their compatibility with fundamental democratic principles. 88. The Court agrees with the grounds on which the Constitutional Court ruled that the refusal to condemn violence against a backdrop of terrorism that had been in place for more than thirty years and condemned by all the other political parties amounted to tacit support for terrorism. Although the applicant parties submitted that their dissolution had been based exclusively on that failure to condemn violent actions, the Court considers that this factor was not the sole basis for the impugned measure, noting in that connection that the Constitutional Court found that it was part of a series of serious and repeated acts and conduct, making it possible to conclude that there had been an accommodation with terror going against organised coexistence in the framework of a democratic State. In any event, the Court points out that merely because the dissolution was partly based on failure to condemn did not make it incompatible with the Convention. A politician ’ s conduct usually includes not only his or her actions or speeches but also, in some circumstances, omissions or a lack of response, which can constitute acts indicating that politician ’ s stance and be just as telling as any overtly supportive action (see, mutatis mutandis, Ždanoka v. Latvia [GC], no. 58278/00, §§ 123 and 130, ECHR 2006- IV ). 89. The Court considers that in the instant case the national courts arrived at reasonable conclusions after a detailed study of the evidence before them and sees no reason to depart from the reasoning of the Supreme Court concluding that there was a link between the applicant parties and ETA. Moreover, in view of the situation that has existed in Spain for many years with regard to terrorist attacks, more particularly in the “ politically sensitive region ” of the Basque Country ( see, mutatis mutandis, Leroy v. France, no. 36109/03, § 45, 2 October 2008), that link may objectively be considered to constitute a threat to democracy. 90. The Court considers, furthermore, that the findings of the Supreme Court respond to the concern to universally condemn justification for terrorism, as evidenced at European level by the European Council framework decision on combating terrorism, Article 4 of which refers to incitement to terrorism; Council Common Position of 27 December 2001 on the fight against terrorism – adopted soon after the attacks of 11 September 2001, it obliges States to take measures to suppress “ active and passive support ” to terrorist organisations and individuals; Resolution 1308 (2002) of the Parliamentary Assembly of the Council of Europe on restrictions on political parties in the Council of Europe member States; and the Council of Europe Convention for the Prevention of Terrorism, which came into force on 1 June 2007 and was signed and ratified by Spain. Article 5 of that Convention provides for “public provocation to commit a terrorist offence” to be defined as an offence. Furthermore, Article 10 recognises the responsibility of legal entities which participate in terrorist offences defined by the Convention and establishes as an offence, under Article 9, participation in the commission of the offences in question. 91. Having regard to the foregoing, the Court accepts the findings of the Supreme Court and the Constitutional Court and considers that the actions and speeches imputable to the applicant political parties, taken together, give a clear picture of a model of society conceived and advocated by them, which is incompatible with the concept of a “ democratic society” (see, conversely, Partidul Comunistilor (Nepeceristi) and Ungureanu, cited above, §§ 58-60 ). Accordingly, the penalty imposed on the applicant parties by the Supreme Court and upheld by the Constitutional Court can reasonably be considered, even in the context of the narrower margin of appreciation enjoyed by the States, as meeting a “ pressing social need ”. ( β) Proportionality of the impugned measure 92. It remains to be determined whether the interference complained of was proportionate to the legitimate aim pursued. 93. In this regard, the Court has found that the interference in question met a “pressing social need”. Since the applicant parties ’ political plans were incompatible with the concept of a “ democratic society ” and entailed a considerable threat to Spanish democracy, the sanction imposed on the applicant parties was proportionate to the legitimate aim pursued, within the meaning of Article 11 § 2 ( see Refah Partisi (the Welfare Party) and Others, cited above, §§ 133 and 134). C. Conclusion of the Court as to Article 11 94. After having ascertained, from the information available to it, that there were convincing and compelling reasons to justify the dissolution of the applicant political parties, the Court has held that that interference corresponded to a “ pressing social need ” and was “ proportionate to the aim pursued”. The dissolution can therefore be deemed to be “necessary in a democratic society”, notably in the interest of public safety, for the prevention of disorder and the protection of the rights and freedoms of others, within the meaning of Article 11 § 2. 95. In the light of the foregoing, the Court concludes that there has been no violation of Article 11 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 96. The applicant parties also relied on Article 10 of the Convention, the relevant parts of which provide: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 97. The Court considers that the questions raised by the applicant parties under this Article concern the same facts as those raised under Article 11 of the Convention. Consequently, it does not find it necessary to examine them separately. | The Court found no violation of Article 11 of the Convention. It held in particular that the Spanish courts, after a detailed study of the evidence before them, had arrived at the reasonable conclusion that there was a link between the applicant parties and ETA. In view of the situation that had existed in Spain for many years with regard to terrorist attacks, those links could objectively be considered as a threat for democracy. |
496 | Entitlement to a refugee card (and thus to housing assistance) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution of Cyprus 17. The right to equality before the law, administration and justice is set out in Article 28 of the Constitution which provides as follows, in so far as relevant: “1. All persons are equal before the law, the administration and justice, and are entitled to equal protection thereof and treatment thereby. 2. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution. ... ” 18. This provision has independent existence and therefore can be raised alone or in conjunction with another right protected by the Constitution. B. Relevant decisions, circulars and provisions concerning “displaced” persons and refugee cards 19. The scheme of aid for displaced and other affected persons referred to in paragraph 5 above was introduced by the Council of Ministers on 19 September 1974 by decision no. 13.503. For the purposes of the scheme the term “displaced person ” was defined by the Council of Ministers as meaning any person whose permanent residence was in the occupied areas, or in an inaccessible area or in an area which had been evacuated to meet the needs of the National Guard. 20. The circular which was issued by the Director of Care and Rehabilitation of Displaced Persons Service (“SCRDP”) on 10 September 1975 reads in relevant part : “(a) When a displaced woman marries a non-displaced man, the husband and children cannot be registered or considered as displaced persons; (b) When a displaced man marries a non-displaced woman, the non-displaced wife will be registered on the refugee card of the husband. The children will be considered as refugees and will be registered on the refugee card of their father.” 21. On 3 May 1979, by decision no. 17.918, the Council of Ministers decided that families who had lost privately - owned residences in the occupied areas and did not own any other property in the free areas until the 16 August 1974, would be provided with a “special certification”. Based on that special certification the family would be allowed a one-off payment of housing assistance (i.e. the payment would be made to the family but the children of such families would not be entitled themselves to apply for such housing assistance). 22. On 3 May 1994, the Council of Ministers decided that families whose home or property was in the occupied areas but who, at the time of the invasion, were resident in the free areas for professional reasons would have the same treatment as persons with refugee cards. The same year, the Council of Ministers also decided that assistance for this category of families would be limited to original displaced persons and not their children. On the other hand, those who had only been given “special confirmation” that they owned a house in the occupied areas but had no other links with the area would continue to be treated in accordance with the Council of Minister ’ s decision of 3 May 1979 (see paragraph 21 above). By contrast, those given such special confirmation who : (i) owned a house in the occupied areas and (ii) did in fact have other links with those areas would be given the same treatment as the holders of refugee cards, meaning the extension of refugee rights to their children. 23. On 19 April 1995, the Council of Ministers decided to extend the term “displaced” to those persons who, before the Turkish invasion, had their ordinary residence in the free areas and/or had been resident abroad because of their work or other obligations but whose principal residence and property were in the occupied areas (decision of the Council of Ministers, no. 42.465). 24. However, on the same date the Council of Ministers, decided that the term “displaced” should not be extended to children whose mother was displaced but whose father was not. The reasons given by the Council of Ministers were : “(a) The actual percentages of displaced persons will be altered. (b) According to a relevant estimate by the Statistical and Research Department, the percentage of displaced persons, in such a case, would gradually rise to 80% of the total population of Cyprus. (c) The number of electors in the occupied Electoral Districts would increase disproportionately, with a corresponding increase-decrease in parliamentary seats by Electoral District.” 25. At the time of the applicant ’ s request for a refugee card, section 119 of the Census Bureau Law ( Ο περί Αρχείου Πληθυσμού Νόμος του 2002 N. 141(I )/2002 ) provided that children whose father was displaced were considered to have their permanent residence in the occupied areas and thus, for the purposes of the law, were considered displaced from the same place as their father. C. The criteria for housing assistance for the holders of refugee cards at the time of the applicant ’ s request for a refugee card 26. At the time of the present applicant ’ s request for a refugee card (February 2003), there were four categories of housing assistance available to the holders of refugee cards : (i) being allocated housing in one of the settlements built by the State for refugees; (ii) a grant towards the cost of building a residence on State- owned land; (iii) a similar grant for building a residence on privately- owned land; and (iv) a grant for buying a flat or residence. 27. In 2003, persons seeking assistance under (iii) or (iv) were not subject to a means test based on their income (Council of Minister ’ s decision 50.669 of 24 November 1999). They were, however, required not to have previously obtained a loan with subsidised interest by the State on the basis of other housing schemes (decision 16.296 of 27 October 1977). 28. According to information provided by the Government, in 2003 the basic amount of housing assistance that could be granted under (iii) or (iv) ranged from CYP 8,520 (EUR 14,557) to CYP 11,540 (EUR 19,717), with appropriate uplifts when larger accommodation was necessary for larger families. It is to be noted that, at the time of her application for a refugee card, the applicant had recently married and did not appear to have any children. D. Relevant changes to the law after the lodging of the present application 29. The Census Bureau ( Amendment ) (No. 2) Law of 2013 (N. 174(I)/2013) amended section 11 9 of the Census Bureau Law to include children whose mother was displaced within the definition of displaced persons. The relevant part of section 119 now reads : “ Children whose father is a displaced person are considered to have their permanent residence in the occupied areas and consequently, for the purposes of the present Law, they are considered to be displaced persons from the same place from which their father comes. Children of only a displaced mother are considered to have their permanent residence in the occupied areas and are displaced persons from the same place from which their mother comes, exclusively for the purposes of any state aid or other benefit which is provided for displaced persons, without their place of origin being connected with any voting rights or electoral process. ” 30. Changes have also been made to eligibility criteria for housing assistance. Those criteria, which had previously been contained in decisions of the Council of Ministers (see for instance paragraph 27 above), were placed on a statutory footing by the Granting of Housing Assistance to Displaced Persons, Affected and Other Persons Law 2005 (“the 2005 Law”). Section 2 of the Law defined “displaced person” as the holder of a refugee card issued by the Civil Registry and Migration Department of the Ministry of Interior. Under section 7 displaced persons were eligible for housing assistance. 31. In 20 11, the Granting of Housing Assistance to Displaced Persons, Affected and Other Persons (Amendment ) Law 2011 amended sections 2 and 7 of the 2005 Law to allow the granting of housing assistance to persons whose mother was displaced. However, this was limited to the first two categories of housing assistance set out at paragraph 26 above ( being allocated housing in one of the settlements built by the State for refugees or being given a grant towards the cost of building a residence on State-owned land). 32. The children of displaced women became eligible for the remaining two categories of housing assistance in 2013 when further amendments to the 2005 Law were made by the Granting of Housing Aid to Displaced Persons, Affected and Other Persons (Amendment ) Law of 2013. 33. Since 2013, applicants wishing either to buy a flat or residence or to build a residence on privately-owned land have been subject to a means test based on their family ’ s annual income. After allowing for deductions of EUR 1,500 for each dependent child, this should not exceed EUR 45,000 (EUR 20,000 for single persons). An applicant whose income falls above these thresholds is not entitled to housing assistance. If the applicant ’ s income falls below these thresholds, the precise amount of housing assistance he or she is entitled to receive is calculated with reference to both the size of the person ’ s family and the family ’ s annual income. E. Relevant commentary on the refugee assistance scheme 34. On 18 May 2006, further to a series of complaints, the Commissioner for Administration (hereinafter “the Ombudsman”) published a report on the inability of the children of displaced women to obtain refugee cards and thus access to the refugee assistance scheme. The Ombudsman considered that allowing children of male displaced persons to acquire the status of displaced persons, while excluding children of female displaced persons merely on grounds of gender, was both contrary to the principle of equality and discriminatory. The Ombudsman recommended that the relevant authorities should consider applying the same rules to both sexes. 35. The pre-2013 scheme also attracted critical comment from the Committee on the Elimination of Discrimination against Women (CEDAW: Concluding Comments on Cyprus, 30 May 2006, at paragraph 32); the Committee on Migration, Refugees and Population of the Parliamentary Assembly of the Council of Europe ( “ Europe ’ s forgotten people: protecting the human rights of long-term displaced persons ”, report of 8 June 2009, at paragraph 70); and the United Nations High Commissioner for Human Rights (report to the United Nations Human Rights Council on the question of human rights in Cyprus, 2 March 2010, at paragraphs 19 and 20). THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION WHEN TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 36. The applicant complained first that the refusal of the authorities to grant her a refugee card breached her property rights under Article 1 of Protocol No. 1. She maintained that having a refugee card provided the holder with a number of benefits such as financial aid, scholarships, free education, medical treatment, housing assistance, and help in the form of clothing and footwear. She had applied for a refugee card with a view to seeking housing assistance. 37. Second, she complained that denying her a refugee card on the basis that she was the child of a displaced woman rather than a displaced man was discriminatory on the grounds of sex and thus in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.1. 38. These Articles provide : Article 14 (prohibition of discrimination) “ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ” Article 1 of Protocol No. 1 (protection of property) “ Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 39. The Government contested those arguments. 40. Since the alleged discriminatory treatment of the applicant lies at the heart of her application, the Court considers it appropriate to examine first the complaint made under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 ( see, mutatis mutandis, Ponomaryovi v. Bulgaria, no. 5335/05, § 45, ECHR 2011 with further references therein). B. Admissibility 41. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 1. The parties ’ observations (a) The Government (i) The background to, and extension of, the scheme 42. The Government submitted that the reasons for restricting the refugee assistance scheme to children whose fathers were displaced, were to be found in the socio - economic situation and social concepts of 1975 when the male was the family breadwinner. The economic effects of displacement were far more acute for the children of male displaced persons who would bear the responsibility for their children ’ s upbringing and education, and for providing them with financial assistance in their adult lives. On the other hand, the children of female displaced persons would not be financially dependent on their mothers : when those women married, their children would be provided for by their non-displaced father who had not suffered the financial effects of displacement. Moreover, it had been necessary for the State to give priority to persons most in need, taking into account the availability of funds for catering for the variety of needs of those affected by the Turkish invasion. 43. The refugee assistance scheme had been reviewed and extended since its introduction. This had always been done subject to the availability of funds. In 1979, the Council of Ministers decided that refugee families would be eligible for housing aid (see paragraph 21 above). In 1994 it decided that families whose home or property was in the occupied areas but who, at the time of the invasion, were resident in the free areas for professional reasons would have the same treatment as persons with refugee cards (see paragraph 22 above). The same year, the Council of Ministers also decided that state assistance for this category of families would be limited to original displaced persons and not their children (ibid.). Those decisions had been the result of prior consultation with the relevant Ministry, the Pancyprian Committee of Refugees (Παγκύπρια Επιτροπή Προσφύγων) and members of the House of Representatives representing all political parties. 44. There had been further, extensive debate on the issue in the House of Representatives, which culminated in two legislative proposals for amending the scheme. The first of the two proposals had two limbs: (i) extending the scheme to include those who, while living in the free areas, had the greater part of their immovable property in the occupied area; and (ii) extending it to children whose mother was displaced. The second of the two proposals was to extend the scheme to cover all persons from the occupied areas who had their permanent home in the free areas for professional reasons. At the time the Government considered that both of these proposals would have had considerable financial consequences. On a basis of estimates prepared in 1994, extending eligibility for refugee cards to children whose displaced parent was the mother would mean that the percentage of the population eligible would rise to 40.7% of the total population by the end of 1992, 51. 2% by 2007 and 80 % by 2047. 45. In light of the above, an agreement was reached between the Government and the relevant Committee of the House of Representatives to extend eligibility for refugee cards to those who had only been given “special confirmations” and not refugee cards in 1994 (see paragraph 22 above). This was enacted via the Council of Minister ’ s decision of 19 April 1995 (see paragraph 23 above). 46. The scheme was again reviewed in 2007 in light of further proposals in the House of Representatives: one to extend eligibility for a refugee card to children whose mother was displaced, until such children reached eighteen years of age; another to extend the right to apply for housing assistance to children whose only displaced parent was their mother. On this occasion, the Government brought forward legislation which amended the Census Bureau Law of 2002 to allow children whose father or mother was a displaced person the right to apply and obtain a certificate recognising them as “displaced persons by descent”. The holder of such certificate was not rendered eligible for any grant or other benefit. 47. At the time of the submission of the Government ’ s initial observations (June 2008), the scheme was under further review, involving various ministries and also consultations with members of the House of Representatives and civil society. According to Government estimates prepared in 2008 in course of that review, there were approximately 5 1, 000 people in the same category as the applicant: affording them the same housing assistance as persons whose father was displaced, would cost an extra EUR 30,0 00, 000 a year. (ii) Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.1 48. The Government submitted that the applicant did not have an interest falling in the ambit of Article 1 of Protocol No. 1 because holders of refugee cards were not provided with housing assistance as of right. The granting of such assistance was subject to various criteria, for instance a requirement not to have property of a considerable value already and a means test based on the total gross income of the person ’ s family. Consequently, the applicant could not assert a right to state assistance under domestic law. As such, there was no pecuniary interest, nor legitimate expectation of such an interest, for the purposes of Article 1 of Protocol No. 1. 49. When the Republic decided to provide assistance to those adversely affected by the invasion, it created a scheme which assisted those most in need of help. The scheme did not include people in the applicant ’ s situation: her case was therefore distinguishable from those cases decided by the Court where the applicant belonged to a class of individuals who were covered by a social benefits scheme and complained that the scheme was applied in a discriminatory manner ( Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 54, ECHR 2005 ‑ X; Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX). To hold that the applicant in the present case had a pecuniary interest falling within the scope of Article 1 of Protocol No. 1 would be tantamount to holding that, when a State made a decision to assist disadvantaged sections of the population, it was not free to prioritise needs or choose the class of persons eligible for assistance. 50. There was, moreover, no difference in treatment: in 1975, owing to the socio-economic differences at the time, the children of displaced women were not in an analogous position to the children of displaced men. According to Ministry of Interior statistics, in 1973, 25% of women were in employment as against 75% of men; the equivalent percentages for 2001 were 42% of women and 58% of men. 51. Finally, even if there had been a difference in treatment, it had an objective and reasonable justification. It served the legitimate aim of affording state assistance to those most in need, taking into account social conditions, budgetary considerations and financial resources. As stated above (paragraphs 43 et seq. above), it had been progressively extended, subject to availability of financial resources. It was not the Government ’ s contention that the socio-economic differences of 1975 had not gradually changed as more women entered the labour market, but rather that the difference in treatment remained objectively and reasonably justified until such a time as those changes removed the need for the difference in treatment entirely. Having regard to the fact that measures of economic and social strategy fell within the State ’ s margin of appreciation, the State ’ s decisions as to the precise timing and means for bringing to an end the difference in treatment were not “ manifestly without reasonable foundation ” : Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § § 52 and 64, ECHR 2006 ‑ VI. (iii) Further submissions on the amendments to the scheme enacted after the lodging of the present application 52. The Government reiterated their initial submission that measures of economic and social strategy fell within the state ’ s margin of appreciation, as did the precise timing and means of phasing out the distinction between the children of displaced men and displaced women introduced in 1975. As with the amendments made between 1975 and 1995, the timing and means of the subsequent amendments made between 2007 and 2013 were not so manifestly unreasonable as to exceed the state ’ s wide margin of appreciation. (b) The applicant (i) Initial submissions 53. The applicant submitted that, notwithstanding the difficulties the Government faced in 1974 in providing assistance to displaced persons from the northern part of the Republic of Cyprus, the decisions taken had to be rational and lawful. They had not been: the decision to exclude the children of displaced women from receiving refugee cards had been arbitrary and unjustified. 54. Article 1 of Protocol No. 1 applied to the benefits to which holders of refugee cards were entitled. In particular, had the applicant possessed such a card she would have applied for, and had a legitimate expectation of being granted, housing assistance to the value of CYP 11,540 (EUR 19,717 ). She satisfied all of the other criteria for that assistance (see, mutatis mutandis, Kopecký v. Slovakia [GC], no. 449 12/98, § 35, ECHR 2004 ‑ IX). 55. There was a clear difference in treatment, a point which appeared to be accepted by the domestic authorities (see for instance the report of the Ombudsman at paragraph 34 above ) and implicitly by the Government in their submissions. 56. There was no objective and reasonable justification for that difference in treatment. She relied on the Court ’ s finding in Wessels ‑ Bergervoet v. the Netherlands, no. 34462/97, § 51, ECHR 2002 ‑ IV, that the traditional role of men as breadwinners did not provide objective and reasonable justification for differences in treatment based on gender. In any case, women had played just as important a role in the rural economic life of the island before the invasion as men had. Nor was it correct to suggest, as the Government had done, that the economic effects of displacement would be more acute and longer -lasting for the children of displaced men. On the contrary, the children of displaced women were in a much worse position given the historic absence of equal pay for men and women and the more limited opportunities for women to balance work and family commitments. 57. With reference to the Government ’ s submission as to the economic consequences of broadening the class of refugees eligible for assistance, the applicant responded that there had been no such budgetary concerns in 1975. Therefore, these concerns could not be relied on as justification more than twenty years later. 58. Finally, the legislative changes introduced in 2007, whereby children of all refugees were granted a certificate of “displaced person by descent”, changed nothing: the certificate did not confer any housing or other benefits on the holder. (ii) Further submissions on the amendments to the scheme enacted after the lodging of the present application 59. The applicant submitted that the amendments were introduced after she had been refused a refugee card and after she had lodged the present application. As such, they did nothing to negate the sex discrimination she had suffered; if anything those amendments showed that the previous system was discriminatory. Whatever those changes, the original difference in treatment remained without reasonable and objective justification. 2. The Court ’ s assessment 60. Before examining the merits of this complaint, the Court notes that the scheme under which the applicant was denied a refugee card was amended after she lodged her application such that, as of 2013, children of displaced women are now eligible for housing assistance on the same terms as the children of displaced men (see the summary of those changes set out at paragraphs 29 – 33 above). It was for this reason that the parties were asked to submit further observations on the admissibility and merits of the case in 2013 (see the summaries of those observations set out at paragraphs 52 and 59 above). However, in those observations neither party has sought to argue that the 2013 changes made any material difference to the applicant ’ s case, or the decision to refuse her a refugee card in 2003. In particular, the Government have not argued that this in any way affected the applicant ’ s victim status: their submission is instead that the changes were demonstrative of their earlier submission that Cyprus had not exceeded the margin of appreciation it enjoyed under the Convention. This is a submission on the merits of the case which the Court will consider in due course. 61. Turning therefore to the merits of this complaint, the Court begins by noting that, as in any case concerning a complaint based on Article 14 taken in conjunction with a substantive article of the Convention or its Protocols, the four questions the Court must consider are: (1 ) whether the facts of the case fall within the ambit of the substantive article (here, Article 1 of Protocol No. 1); (2 ) whether there has been a difference in treatment between the applicant and others; (3 ) whether that difference in treatment has been on the basis of one of the protected grounds set out in Article 14 of the Convention; and (4) whether there was a reasonable and objective justification for that difference in treatment; if there was not, the difference in treatment will be discriminatory and in violation of Article 14. (a) Whether the facts of the case fall within the ambit Article 1 of Protocol No. 1 62. The prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide ( Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts) and E.B. v. France [GC], no. 43546/02, § 48, 22 January 2008). 63. These principles apply generally in cases under Article 1 of Protocol No. 1 and are equally relevant when it comes to welfare benefits. In particular, this Article does not create a right to acquire property. It places no restriction on the Contracting State ’ s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements ( Stummer v. Austria [GC], no. 37452/02, § 82, ECHR 2011). 64. The relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question ( Stummer at § 83 and Fabris v. France [GC], no. 16574/08, § 52, ECHR 2013 (extracts) ). 65. In applying that test to the present case, the Court considers that, while a range of benefits appear to have been available to the holders of refugee cards, it is only necessary to consider the particular benefit of housing assistance: this, rather than the other benefits apparently available, was the reason the applicant applied for a refugee card in the first place. 66. That housing assistance was clearly a “benefit” for the purposes of Article 1 of Protocol No. 1. In 2003, the material date for the purposes of the present case, the primary condition of entitlement to housing assistance was that the person applying for it had to be the holder of a refugee card. At that time, there was no means test (see paragraph 27 above). Finally, the only other relevant condition for obtaining this assistance in 2003 was that the person applying for the assistance had not previously obtained a loan from the State : it has not been suggested that the present applicant did not meet that condition. Therefore, but for the need to have a refugee card, the applicant would have had a right, enforceable under Cypriot law, to receive housing assistance. 67. In seeking to persuade the Court that the facts of this case do not fall within the ambit of Article 1 of Protocol No. 1, the Government have sought, on the basis of three submissions, to distinguish the refugee assistance scheme from other similar benefit schemes which have been considered by the Court to fall within the ambit of Article 1 of Protocol No. 1. First, it is said that the scheme was designed to help those most in need. Second, they submit that this case is different from those cases where an applicant belongs to a class of individuals covered by a social benefits scheme but the scheme is applied in a discriminatory manner. This is because, in the present case, the refugee assistance scheme simply did not include people in the applicant ’ s situation. Third, in the Government ’ s submission, any contrary conclusion would be tantamount to holding that a State is not free to prioritise needs or choose the class of persons eligible for assistance. 68. These submissions are unpersuasive. The first and third submissions are, in essence, submissions as to whether difference in treatment in entitlement to a refugee card (and thus to the benefits which refugees are entitled) had an objective and reasonable justification rather than whether the benefits to which refugees are entitled fall within the ambit of Article 1 of Protocol No 1. As to the Government ’ s second submission, there is no support in the Court ’ s case-law for distinguishing between a scheme which applied in a discriminatory manner and a scheme from which a person has been excluded in a discriminatory manner: in both cases, the person has not received a benefit to which members of the scheme are entitled. In short, there is nothing in the Government ’ s three submissions which could cast doubt on the correctness of the conclusion that the Court has reached in paragraph 66 above. 69. For these reasons, the Court finds that the facts of this case fall within the ambit of Article 1 of Protocol No. 1. (b) Whether there has been a difference in treatment 70. There will be a difference in treatment if it can be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment (see Konstantin Markin, cited above, § 125). 71. Relying on the different proportions of women and men in the workplace when the scheme was first enacted, the Government have submitted that the applicant, as the daughter of a displaced woman, is not in an analogous position to the child of a displaced man. However, it is not clear to the Court why these proportions should have any bearing on whether the children of displaced women and the children of displaced men were in an analogous situation, either in 1975 when the scheme was enacted or in 2003 when the applicant applied for a refugee card. The fact that more men happened to be in the workplace (and by implication that more displaced men worked than displaced women) does not mean that the children of displaced men are in any different situation from the children of displaced women. The only difference between them is the sex of their displaced parent. The children of displaced men and the children of displaced women have similar needs and are therefore in an entirely analogous situation. 72. In being entitled to a refugee card (and thus housing assistance) the children of displaced men clearly enjoy preferential treatment over the children of displaced women. A difference in treatment has thus been established in this case. (c) Whether this difference in treatment has been on the basis of one of the protected grounds set out in Article 14 of the Convention 73. It does not appear to be in dispute that this difference in treatment was on the basis of sex, one of the protected grounds set out in Article 14. (d) Whether there was a reasonable and objective justification for this difference in treatment 74. A difference of treatment is discriminatory and thus in violation of Article 14, if it has no objective and reasonable justification; that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Fabris, cited above, § 56; and Konstantin Markin at §125 ). 75. In cases where the difference in treatment is on grounds of sex, the general principles which apply in determining this question of justification, were restated by the Grand Chamber in Konstantin Markin at §§ 126 and 127. Where relevant to the present case, these provide as follows (internal references omitted): - The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention ’ s requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved. - The advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference in treatment could be regarded as compatible with the Convention. In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example, States are prevented from imposing traditions that derive from the man ’ s primordial role and the woman ’ s secondary role in the family. 76. Applying these principles to the present case, the Court begins by observing that the principal justification the Government have advanced for the difference in treatment is the socio-economic differences which were said to exist in Cyprus in 1974, notably that men were the traditional breadwinners at that time (see their observations summarised at paragraph 42 above). However, this is precisely the kind of reference to “traditions, general assumptions or prevailing social attitudes” which provides insufficient justification for a difference in treatment on grounds of sex because it derives entirely from the man ’ s primordial role and woman ’ s secondary role in the family (see Konstantin Markin at paragraph 127, quoted at paragraph 74 above). 77. Moreover, even if that reflected the general nature of economic life in rural Cyprus in 1974 (a matter disputed by the parties : compare the Government ’ s submissions at paragraph 42 above with those of the applicant at paragraph 56 above ), it did not justify regarding all displaced men as breadwinners and all displaced women as incapable of fulfilling that role once displaced from the northern to the southern part of the Republic. Nor could it justify subsequently depriving the children of displaced women of the benefits to which the children of displaced men were entitled. This is particularly so when many of the benefits that the children of displaced men were entitled, including housing assistance, were without any reference to a means test. This would have meant, for instance, that the child of a displaced woman earning a lower income would not have been entitled to that assistance whereas the child of a displaced man earning a higher income would have been entitled to it. This difference in treatment towards the children of displaced persons cannot be justified simply by reference to the need to prioritise resources in the immediate aftermath of the 1974 invasion. 78. The Government, drawing firstly on the progressive expansion of the scheme since 1974 and secondly on the budgetary implications that ending the difference in treatment would have had, have submitted that, even if the difference in treatment could no longer be justified, the State should nonetheless enjoy a margin of appreciation in choosing the timing and means for extending the refugee assistance scheme to the children of displaced women. 79. Neither of these considerations suffices to remedy the otherwise discriminatory nature of the scheme. First, whatever the attempts to expand the scheme from 1974 to 2003, none of the changes introduced during that period cured the clear difference in treatment between the children of displaced men and the children of displaced women. Nor can it be said that these changes were introduced to reflect the gradual entry of women into the labour market (see the Government ’ s submissions at paragraph 51 above). From 1974-2013 the scheme at all times excluded the children of displaced women. Budgetary considerations alone cannot serve to justify a clear difference in treatment based exclusively on gender, particularly when the successive expansions of the scheme between 1974 and 2013 would themselves have had financial consequences. 80. Finally, it is particularly striking that the scheme continued on the basis of this difference in treatment until 2013, nearly forty years after it was first introduced. The fact the scheme persisted for so long, and yet continued to be based solely on traditional family roles as understood in 1974, means that the State must be taken to have exceeded any margin of appreciation it enjoyed in this field. Very weighty reasons would have been required to justify such a long-lasting difference in treatment. None have been shown to exist. There is accordingly no objective and reasonable justification for this difference in treatment. 81. For these reasons, the Court concludes that the difference in treatment between the children of displaced women and the children of displaced men was discriminatory and thus finds a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1. 82. In view of that conclusion, the Court considers it unnecessary to examine separately the complaint under Article 1 of Protocol No. 1 taken alone (see Ponomaryovi, cited above, § 64). II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 12 83. In the alternative, the applicant complained that the refusal to grant her an identity card was in violation of Article 1 of Protocol No. 12, which provides: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” 84. The Government contested that argument. 85. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. However, having regard to the finding relating to Article 14 taken in conjunction with Article 1 of Protocol No. 1 (see paragraph 81 above), the Court considers that it is not necessary to examine this complaint. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 86. The applicant further complained that there had been a violation of Article 13 as no authority in Cyprus, including the courts, had examined her complaint and, as a result, given her relief. Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 87. The Government submitted that Article 13 does not guarantee a remedy allowing a Contracting State ’ s primary legislation to be challenged on grounds that it is contrary to the Convention ( P.M. v. the United Kingdom, no. 6638/03, § 34, 19 July 2005 and further references therein). A. Admissibility 88. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 89. The Court considers that the domestic proceedings which the applicant brought did not attempt to challenge primary legislation : at the time she was refused a refugee card all of the relevant provisions were contained in decisions of the Council of Ministers (see paragraphs 19 – 24 above). They were thus administrative- executive decisions, and the Government have not relied on any legislative act relevant to the scheme and in force at the time in question. Thus, contrary to the Government ’ s submission, this is not a case where the impugned measure was contained in primary legislation and where, therefore, there was no need to have an effective remedy in place. Accordingly, the ordinary rule on the need to provide an effective remedy applies. 90. In applying that rule, the Court recalls that the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see, as a recent authority, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 131, ECHR 2014). Nonetheless, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see Nada v. Switzerland [GC], no. 10593/08, § 207, ECHR 2012; see also Ališić and Others, ibid. ). 91. In the present case, the reason the Supreme Court was unable to consider whether the applicant was entitled to the remedy she sought ( the quashing of the decision to refuse her a refugee card) was that it considered that it did not have jurisdiction to extend the refugee card scheme without infringing the constitutional principle of the separation of powers (see the final two paragraphs of the Supreme Court ’ s judgment, quoted at paragraph 15 above). In other words, the Supreme Court, applying that principle, found itself unable to consider the merits of the applicant ’ s discrimination claim and thus unable to grant her appropriate relief. The Court readily understands the Supreme Court ’ s concern to ensure proper respect for the separation of powers under the Constitution of Cyprus and it is not the Court ’ s place to question the Supreme Court ’ s interpretation and application of that principle. However, the consequence of the Supreme Court ’ s approach was that, in so far as the applicant ’ s Convention complaints were concerned, recourse to the Supreme Court was not an effective remedy for her. Since the Government have not submitted that any other effective remedy existed in Cyprus at the material time to allow the applicant to challenge the discriminatory nature of the refugee card scheme, it follows that there has been a violation of Article 13 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 92. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 93. The applicant submitted that she is entitled to an amount of EUR 112,225 reflecting the loss in the value of the property she could have acquired had she been granted a refugee card in 2003. In support of her claim, the applicant submitted a valuation report conducted on the basis of randomly selected properties in Kokkynotrimithia where she lived. The report compared the prices between properties there for the years 2003, when the applicant applied for a refugee card, and 2008, the date the applicant submitted her just satisfaction claims. According to the report, the average price of a building plot in 2003 was CYP 15,700 (approximately EUR 26,825) in contrast to EUR 153,774 in 2008. The applicant submitted that the housing assistance of CYP 11,540 which she could have received in 2003 amounted to 73% of the purchase price of a building plot in 2003. With this in mind the applicant submitted that, taking into account 2008 prices, she had suffered a loss of EUR 112,225 (EUR 153,774 x 73%). Alternatively, the applicant submitted that she was entitled to a sum equal to the housing assistance granted to displaced persons wishing to construct a three-bedroom residence in 2008 meaning EUR 68,350. 94. The Government contested both of the applicant ’ s claims submitting that the sums claimed were speculative and not causally linked to the alleged violation of the Convention. 95. The Court reiterates that the indispensable condition for making an award in respect of pecuniary damage is the existence of a causal link between the damage alleged and the violation found (see, for instance, Nikolova v. Bulgaria [GC], no. 31195/96, § 73, ECHR 1999 ‑ III). The Court cannot therefore accept the applicant ’ s claim based on the 2008 value of property she could have bought in 2003, nor her claim for CYP 68,350 (the value of housing assistance in 2008): neither of these claims are causally linked to the violation found. 96. Nonetheless, the Court reiterates that on the basis of Article 41 the applicant should so far as possible be put in the position she would have enjoyed had the violation found by the Court not occurred : see Wessels ‑ Bergervoet, cited above, § 60. It is therefore appropriate to award the applicant the grant of housing assistance she would have received but for the difference in treatment she suffered. However, since the applicant has not provided sufficient details as to why she claimed she would have been entitled to receive CYP 11,540, the Court considers it appropriate to basis its award on the minimum amount available in 2003, CYP 8,520 (see paragraph 28 above). Adjusting that sum to reflect interest and inflation since 2003, and ruling on an equitable basis, the Court awards the applicant EUR 2 1, 5 00. B. Non-pecuniary damage 97. The applicant submitted that she is also entitled to non-pecuniary damages on the grounds that the discrimination was solely on the basis of gender and that the Government continuously failed to take any corrective measures to alleviate the discriminatory treatment. 98. The Government submitted that, in the event the Court found a violation of the Convention, such finding should constitute sufficient just satisfaction. 99. The Court accepts that the applicant has suffered non-pecuniary damage resulting from the nature of the discrimination. Ruling on an equitable basis, the Court awards the applicant EUR 4,000 under this head. C. Costs and expenses 100. The applicant claimed CYP 4,086 (EUR 6,981) for the costs and expenses she had incurred before the Supreme Court, plus interest. She further claimed EUR 10,000 for the costs and expenses she had incurred in proceedings before the Court. Finally, the applicant claimed EUR 575 for the preparation of the valuation report on property prices in Kokkynotrimithia (see paragraph 93 above). 101. The Government accepted that the costs and expenses suffered by the applicant in the domestic proceedings and in proceedings before the Court were recoverable by way of just satisfaction provided that they had been actually and necessarily incurred. 102. For costs and expenses incurred by the applicant before the Supreme Court, the Court considers that these were necessarily and reasonably incurred in the applicant ’ s attempt to seek redress for the violation of the Convention it has found. Thus, they are in principle recoverable (see, for instance, Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 58, 27 February 2007 ). The sums claimed are also reasonable as to quantum. The Court considers, therefore, that these claims should be met in full and accordingly awards the applicant EUR 6,981 under this head. 103. As regards the costs incurred in the proceedings before it, the Court notes that the applicant has not provided an itemised bill of costs sufficiently substantiating her claims ( Efstathiou and Michailidis & Co. Motel Amerika v. Greece, no. 55794/00, § 40, ECHR 2003 ‑ IX ). For this reason, the Court finds that this part of the applicant ’ s claim must be dismissed. 104. Finally, as regards the EUR 575 incurred for valuation report, given that pecuniary damage has been calculated on the basis of the amount of housing assistance available to the applicant in 2003 and not property prices in 2008, the Court finds that this expense was not necessarily incurred ( Michael Theodossiou Ltd. v. Cyprus (just satisfaction), no. 31811/04, § 30, 14 April 2015). This part of the applicant ’ s claim must also be dismissed. D. Default interest 105. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention read in conjunction with Article 1 (protection of property) of Protocol No. 1 to the Convention. It first established the existence of a difference in treatment on the grounds of sex on account of the fact that, in being entitled to a refugee card (and thus to housing assistance) the children of displaced men enjoyed preferential treatment over the children of displaced women. As to whether there was a reasonable and objective justification for this difference in treatment, the main argument advanced by the Government was the socio-economic differences between women and men allegedly existing in Cyprus when the scheme was introduced. However, the Court recalled that this kind of reference to “traditions, general assumptions or prevailing social attitudes” provided insufficient justification for a difference in treatment on grounds of sex. As to the margin of appreciation the State allegedly enjoyed in choosing the timing and means for extending the 1974 scheme to the children of displaced women, the Court noted that the scheme had excluded the children of displaced women for almost forty years. Budgetary considerations alone could not justify such a difference in treatment based solely on gender, particularly when the successive expansions of the scheme between 1974 and 2013 had themselves had financial consequences. Furthermore, the fact that the scheme had persisted for so long and yet continued to be based solely on traditional family roles as understood in 1974 meant that the State had exceeded any margin of appreciation it enjoyed in this field. Very weighty reasons would have been required to justify such a long-lasting difference in treatment. None had been shown to exist. There was accordingly no objective and reasonable justification for the difference in treatment. The Court also found a violation of Article 13 (right to an effective remedy) of the Convention on account of the lack of effective remedies at the material time which to enable the applicant to challenge the discriminatory nature of the scheme. |
154 | Medically-assisted procreation | II. RELEVANT DOMESTIC LAW 1. Law no. 40 of 19 February 2004 (“Rules on assisted reproduction technology”) Section 4(1) Access to technology “Access to assisted reproduction technology shall be authorised only where proof is adduced that it is otherwise impossible to eliminate the causes of inability to procreate, and, in any event, [said access] shall be limited to medically certified inexplicable cases of sterility or infertility and to cases of sterility or infertility [deriving] from a medically certified and verified cause. ...” Section 5(1) Subjective conditions “... Adult couples, composed of two persons of opposite sex, who are married or living together as a couple, of potentially fertile age and alive may have access to assisted reproduction technology.” Section 14(5) Limits on application of technology to embryos “Individuals satisfying the conditions provided for in section 5 shall be informed of the number and, at their request, the state of health of the embryos produced and destined to be transferred into the womb.” 2. Ministry of Health decree no. 15165 of 21 July 2004 Measures protective of the embryo “... Any test regarding the state of health of an embryo created in vitro, within the meaning of section 14(5) [of Law no. 40 of 2004], must be for observation purposes alone ( dovrà essere di tipo osservazionale ). ...” 3. Ministry of Health decree no. 31639 of 11 April 2008 13. In this decree the reference to “observation” purposes mentioned in Ministry of Health decree no. 15165 of 21 July 2004 was deleted. 14. Furthermore, the part of this decree concerning certification of infertility or sterility provides that, for the purposes of access to assisted reproduction technology, this must be done “... having regard also to particular conditions in the presence of which – where the man is a carrier of a sexually transmissible viral disease by infection with HIV, or hepatitis B and C – the high risk of infection for the mother or for the fœtus constitutes de facto, in objective terms, an obstacle to procreation, requiring precautions that necessarily result in infertility of a kind comparable to acute male infertility deriving from a verified and medically certified cause such as that referred to in section 4(1) of Law no. 40 of 2004”. 4. Judgment of the Lazio Regional Administrative Court no. 398 of 21 January 2008 15. In this judgment the court set aside on grounds of ultra vires the part of Ministry of Health decree no. 15165 of 21 July 2004 limiting any test relating to the state of health of embryos created in vitro to observation purposes alone. The court found that the power to establish the scope of application of such tests was a matter for the legislature alone and not the ministry, which had purely implementing powers. 5. Order no. 12474/09 of the Salerno Court, deposited on 13 January 2010 16. In this order, following urgent proceedings, the delegated judge of the Salerno Court granted, for the first time, a couple who were neither sterile nor infertile, and both healthy carriers of muscular atrophy, access to PGD. 17. The judge referred, among other things, to the new provisions introduced by the Ministry of Health decree no. 31639 of 11 April 2008 no longer limiting tests on the state of health of embryos created in vitro to observation purposes alone and authorising access to assisted reproduction for couples in which the man carried a sexually transmissible viral disease. 18. He thus considered that PGD had to be regarded as one of the prenatal monitoring techniques for ascertaining an embryo’s state of health. Accordingly, prohibiting access to the technique, in the claimants’ case, engaged the medical liability of the Health Director of the Centre for Reproductive Medicine, who was the defendant in the proceedings, for failure to provide a health service. 19. The judge also found that since the mother had the right to abort an unhealthy fœtus, it would be unreasonable not to guarantee her the right to know the state of health of the embryo by means of PGD. 20. The judge accordingly ordered the health director to carry out a PGD on the claimants’ in vitro embryo in order to determine whether it was affected by muscular atrophy. III. RELEVANT EUROPEAN LAW 1. The Council of Europe Convention on Human Rights and Biomedicine (Oviedo Convention) of 4 April 1997 21. The relevant parts of this Convention read as follows: Article 12 – Predictive genetic tests “Tests which are predictive of genetic diseases or which serve either to identify the subject as a carrier of a gene responsible for a disease or to detect a genetic predisposition or susceptibility to a disease may be performed only for health purposes or for scientific research linked to health purposes, and subject to appropriate genetic counselling”. 22. Paragraph 83 of the Explanatory Report to the Oviedo Convention provides: Article 12 as such does not imply any limitation of the right to carry out diagnostic interventions at the embryonic stage to find out whether an embryo carries hereditary traits that will lead to serious diseases in the future child. 23. The Oviedo Convention, signed on 4 April 1997, has not been ratified by the Italian Government. 2. Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 24. This directive has established a minimum quality and safety standard for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, thus providing for harmonisation of national regulations. It also covers embryos transferred following PGD. 3. Background document on preimplantation and prenatal genetic testing published by the Steering Committee on Bioethics (CDBI) of the Council of Europe on 22 November 2010 (CDBI/INF (2010) 6) 25. The CDBI drew up this report with a view to providing information on preimplantation and prenatal diagnosis and the legal and ethical questions arising from their use in various European countries. The relevant extracts of this document are worded as follows: [a) Context] “ In vitro fertilisation has been performed since the late ‘70s to help couples with fertility problems. Advances in reproductive medicine have opened new possibilities to avoid genetic disease by selective transfer of embryos. At the beginning of the’90s, preimplantation genetic diagnosis (PGD) was introduced as a possible alternative to prenatal genetic diagnosis (PND) for couples at risk of transmitting a particularly severe genetic defect, avoiding the difficult decision of whether or not to terminate a pregnancy.” [b) PGD cycle] “A “PGD cycle” comprises the following steps: ovarian stimulation, oocyte retrieval, in vitro fertilisation of several mature oocytes, by introcytoplasmic sperm injection (ICSI), removal of 1 or 2 embryonic cells, genetic analysis of nuclear material from those cells and lastly selection and transfer of embryos not carrying the abnormal genetic characteristics in question.” [c) PGD uses] “Use of PGD for medical indications has been offered to couples at high risk of transmitting a specific genetic disease of particular gravity ... and untreatable at the time of diagnosis. The risk was often identified on the basis of family history or the birth of affected children. Numerous monogenic indications currently meet these criteria justifying application of PGD, such as cystic fibrosis, Duchenne Muscular Dystrophy, myotonic dystrophy, Huntington’s disease, spinal muscular atrophy in infants and haemophilia.” “In those countries where preimplantation genetic diagnosis (PGD) is performed, it has become an established clinical method to analyse genetic characteristics of embryos created by in vitro fertilisation, and to obtain information which is used to select the embryos to be transferred. The use of PGD is mainly requested by couples carrying genetic conditions linked to severe disorder or premature death of their offspring who wish to avoid initiation of a pregnancy that may not come to term or that may entail the difficult question of terminating the pregnancy in case of a detected particularly severe genetic defect.” 4. The report “Preimplantation Genetic Diagnosis in Europe” drawn up by the JRC (Joint Research Centre) of the European Commission, published in December 2007 (EUR 22764 EN) 26. This report shows that PGD patients from countries where the practice is prohibited go abroad for the diagnosis. Italian patients generally go to Spain, Belgium, the Czech Republic or Slovakia. 27. The study also points to the inconsistency of legislative provisions which prohibit access to PGD yet authorise access to prenatal diagnosis and medical termination of pregnancy in order to avoid serious genetic diseases in children. 5. Report on the proposal for a Council recommendation on a European action in the field of rare diseases (European Parliament 23 April 2009) 28. The relevant parts of the press release on this report read as follows: “Concerted action at EU and national level is needed to tackle this problem, according to a report adopted by Parliament today. The current EU legislative framework is poorly suited to rare diseases and not well defined. Although rare diseases contribute greatly to morbidity and mortality, they are mostly invisible in health care information systems due to the lack of appropriate coding and classification systems. ... Parliament adopted an amendment today which recommends that Member States encourage efforts to avoid rare diseases which are hereditary, through genetic counselling of carrier parents and, where appropriate and “not contrary to existing national laws and always on a voluntary basis, through pre-implantation selection of healthy embryos”.” 6. Comparative law 29. The documents in the Court’s possession (namely, the reports of the Council of Europe and the European Commission, paragraphs 25 to 27 above) show that PGD is banned, at least for the prevention of transmission of genetic diseases, in the following countries: Austria, Italy and Switzerland. 30. With regard to Switzerland, the Court notes that on 26 May 2010 the Federal Council submitted for consultation a draft amendment to the current ban on PGD contained in the Assisted Reproduction Act, to provide for regulated access. An amendment to Article 119 of the Federal Constitution will be necessary in order to implement the change. 31. It also appears that PGD is authorised in the following countries: Germany, Belgium, Denmark, Spain, Finland, France, Georgia, Greece, Norway, the Netherlands, Portugal, the Czech Republic, the United Kingdom, the Russian Federation, Serbia, Slovenia and Sweden. 32. PGD is not the subject of specific regulations in the following countries: Bulgaria, Cyprus, Malta, Estonia, Ireland, Latvia, Luxembourg, Poland, Romania, Slovakia, Turkey and Ukraine. The Court notes that three of those countries (Cyprus, Turkey and Slovakia allow access to PGD in practice. 33. The Court also observes that in the case of Roche v. Roche and Others ( [2009] IESC 82 (2009 )), the Irish Supreme Court established that the concept of the unborn child did not apply to embryos created through in vitro insemination, which accordingly did not benefit from the protection provided for in Article 40.3.3. of the Irish Constitution recognizing the right to life of the unborn child. In that case the applicant, who had already had a child following in vitro fertilisation, had applied to the Supreme Court for leave to have implanted three other embryos created by the same fertilisation process, despite the lack of consent of her former partner from whom she had separated in the meantime. 7. Relevant information from the “Bill amending the Assisted Reproduction Technology Act of 6 July 2007 ...” – Belgian Senate, session 2010-2011 34. This Bill seeks to extend the use of PGD to precluding the risk of giving birth to a child who is a healthy carrier of a serious genetic disease (access to this technique to avoid giving birth to children affected by genetic diseases being already provided for in Belgian law). The relevant passages of the Bill are set out below: “Requests for preimplantation testing have increased over time and this is now an option for couples who run a high risk of giving birth to a child with a serious hereditary disorder where mutation can be detected. ... Future parents generally prefer preimplantation genetic diagnosis (PGD) to prenatal diagnosis. Indeed ... “where the fœtus is affected this will involve terminating the pregnancy from three months onwards, which is generally a source of mental distress for parents who have invested emotionally in the fœtus as their future child ... Moreover, it is possible that several successive pregnancies have to be terminated before a healthy fœtus can be obtained [Source: Bioethics Advisory Committee, opinion no. 49 on the use of PGD] Accordingly, the main advantage of preimplantation testing is that termination of pregnancy can be avoided. It has been observed that this constitutes the main motivation of the majority of couples seeking the treatment, these couples having often already endured the distressing experience of terminating a pregnancy on medical grounds.” THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 41. Relying on Article 8 of the Convention, the applicants complained of a violation of their right to respect for their private and family life in that their only means of producing children unaffected by the disease of which they were healthy carriers was to commence a pregnancy by natural means and medically terminate it whenever the prenatal diagnosis showed that the foetus was affected. 42. The relevant parts of Article 8 of the Convention provide: “1. Everyone has the right to respect for his private and family life .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.” ... B. Merits 1. The parties’ submissions a) The Government 44 The Government observed that the applicants were relying in substance on a “right to have a healthy child”, which was not protected as such by the Convention. Accordingly, their complaint was inadmissible ratione materiae. 45. Were the Court to consider that Article 8 was nonetheless applicable to the present case, the applicants’ right to respect for their private and family life had not in any case been infringed because the ban on PGD was a measure in accordance with the law which pursued a legitimate aim – protecting the rights of others and morals – and was necessary in a democratic society. 46. In regulating access to PGD, the State had taken account of the health of the child and the woman, the latter being susceptible to depression on account of ovarian stimulation and oocyte retrieval. Furthermore, the measure in question was designed to protect the dignity and freedom of conscience of the medical professions and precluded the risk of eugenic selection. 47. Lastly, given the lack of a European consensus in this area, the member States enjoyed a wide margin of appreciation since the present application related to moral, ethical and social issues. b) The applicants 48. The applicants observed that “the right to respect for both the decisions to become and not to become a parent”, particularly in the genetic sense, fell within the concept of right to respect for private and family life (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I). 49. In this context the State should refrain from interfering in any way in the individual’s choice as to whether or not to procreate. The State also had a duty to put measures in place to allow that choice to be freely made. c) The third-party interveners 50. The first third-party intervener reiterated the observations of the respondent Government. They also observed that, like the ban on PGD, the possibility of a legal abortion sought to protect the life of the unborn child since the system provided alternatives to abortion by putting in place social measures, for example. Furthermore, PGD involved the elimination of several human beings whereas an abortion eliminated only one. 51. The second third-party intervener submitted that access to artificial insemination followed by PGD would allow the applicants to conceive a child unaffected by the hereditary disease, without having recourse to abortions on medical grounds. This would accordingly also protect the first applicant’s health. 2. The Court’s assessment a) The scope of the complaint lodged by the applicants and its compatibility ratione materiae with the rights guaranteed by Article 8 of the Convention 52. The Court notes first of all that, in order to establish whether the complaint lodged by the applicants is compatible ratione materiae with Article 8 of the Convention, it is essential to determine the scope of the complaint. 53. It observes that the Government and the first third-party intervener have alleged that the applicants complain of a violation of a “right to have a healthy child”. The Court notes, however, that the right relied on by the applicants is confined to the possibility of using ART and subsequently PGD for the purposes of conceiving a child unaffected by cystic fibrosis, a genetic disease of which they are healthy carriers. 54. In the present case PGD cannot exclude other factors capable of compromising the future child’s health, such as, for example, the existence of other genetic disorders or complications arising during pregnancy or birth, since the test in question seeks to diagnose a “specific genetic disease of particular gravity ... and untreatable at the time of diagnosis” (see the report of the CDBI of the Council of Europe, part b. “PGD Cycle”, paragraph 25 above). 55. The Court reiterates that the notion of “private life” within the meaning of Article 8 is a broad concept which includes, among other things, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B), the right to “personal development” (see Bensaïd v. the United Kingdom, no. 44599/98, § 47, ECHR 2001-I), or alternatively the right to self-determination (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ). Factors such as sexual identity, orientation and life also fall within the personal sphere protected by Article 8 (see, for example, Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45, and Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, § 36, Reports of Judgments and Decisions 1997 ‑ I), as does the right to respect for the decisions to become or not to become a parent (see Evans, cited above, § 71; A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010; and R.R. v. Poland, no. 27617/04, § 181, ECHR 2011 (extracts)). 56. Under Article 8 of the Convention, the Court has also acknowledged a right to respect for the decision to become genetic parents (see Dickson v. the United Kingdom [GC], no. 44362/04, § 66, ECHR 2007 ‑ V, with the references cited therein) and concluded that Article 8 applies to heterologous insemination techniques for in vitro fertilisation (see S.H. and Others v. Austria [GC], no. 57813/00, § 82, ECHR 2011). 57. In the present case the Court considers that the applicants’ desire to conceive a child unaffected by the genetic disease of which they are healthy carriers and to use ART and PGD to this end attracts the protection of Article 8, as this choice is a form of expression of their private and family life. Consequently, this provision is applicable in the present case. b) Compliance with Article 8 of the Convention i. Interference “in accordance with the law” and legitimate aim 58. The Court observes that, under Italian law, assisted reproductive technology is available only to sterile or infertile couples and to couples in which the man is a carrier of a sexually transmissible viral disease (HIV, hepatitis B and C) (see section 4(1) of Law no. 40/2004 and Ministry of Health decree no. 31639 of 11 April 2008). As the applicants do not fall into those categories, they have no access to assisted reproductive technology. With regard to PGD, the Government have explicitly acknowledged that the domestic law imposes a blanket ban on access to this technique .... The ban in question thus amounts to an interference with the applicants’ right to respect for their private and family life. 59. In the Court’s view, such interference is certainly “in accordance with the law” and can be regarded as pursuing the legitimate aims of protecting morals and the rights and freedoms of others, which is undisputed by the parties. ii. Necessary in a democratic society 60. The Court notes at the outset that the applicants’ complaint does not concern the question whether, taken alone, the ban on their recourse to PGD is compatible with Article 8 of the Convention. The applicants complain of a lack of proportionality of such a measure given that Italian law does allow them to abort the foetus if it is affected by the disease of which they are carriers. 61. In order to justify this interference, the Government refer to the concern to protect the health of “the child” and the woman, the dignity and freedom of conscience of the medical professions and the interest in precluding a risk of eugenic selection. 62. The Court is not persuaded by those arguments. While stressing that the concept of “child” cannot be put in the same category as that of “embryo”, it fails to see how the protection of the interests referred to by the Government can be reconciled with the possibility available to the applicants of having an abortion on medical grounds if the fœtus turns out to be affected by the disease, having regard in particular to the consequences of this both for the fœtus, which is clearly far further developed than an embryo, and for the parents, in particular the woman (see the report of the CDBI of the Council of Europe and the information contained in the Belgian Bill, paragraphs 25 and 34 above). 63. Furthermore, the Government have failed to explain how the risk of eugenic selection and affecting the dignity and freedom of conscience of the medical professions would be averted in the event of an abortion being carried out on medical grounds. 64. The Court cannot but note that the Italian legislation lacks consistency in this area. On the one hand it bans implantation limited to those embryos unaffected by the disease of which the applicants are healthy carriers, while on the other hand it allows the applicants to abort a fœtus affected by the disease (see also the report of the European Commission, paragraph 27 above). 65. The consequences of such legislation for the right to respect for the applicants’ private and family life are self-evident. In order to protect their right to have a child unaffected by the disease of which they are healthy carriers, the only possibility available to them is to start a pregnancy by natural means and then terminate it if the prenatal test shows that the fœtus is unhealthy. In the instant case the applicants have already terminated one pregnancy for that reason, in February 2010. 66. In these circumstances the Court should not underestimate either the anxiety experienced by the first applicant, whose only hope of having another child, since she is unable to have recourse to PGD, carries the concomitant risk that the child will be born with the disease or the suffering inherent in the painful decision to undergo, as the case may be, an abortion on medical grounds. 67. The Court also notes that in the case of S.H. (cited above, § 96), the Grand Chamber established that, in cases of heterologous insemination, having regard to medical and scientific developments, the State’s margin of appreciation could not be decisively narrowed. 68. While acknowledging that the question of access to PGD raises sensitivie moral and ethical questions, the Court notes that the solutions reached by the legislature are not beyond the scrutiny of the Court (see, mutatis mutandis, S.H., cited above, § 97). 69. In the present case the Court reiterates that, unlike the case of S.H. (cited above), where the Court assessed the compatibility of Austrian law prohibiting heterologous insemination with Article 8 of the Convention, its task in this case, which concerns homologous insemination, is to verify the proportionality of the measure in question in the light of the fact that termination of pregnancy on medical grounds is an option for the applicants (see paragraph 60 above). 70. It is therefore a specific situation which, according to the comparative-law materials in the Court’s possession, apart from Italy, concerns only two of the thirty-two States studied, namely, Austria and Switzerland. Moreover, with regard to the latter State, the Court notes that a draft amendment to the current ban on PGD, to provide for regulated access, is now being examined (see paragraph 30 above). 3. Conclusion 71. Having regard to the above-described inconsistency in Italian legislation on PGD, the Court considers that the interference with the applicants’ right to respect for their private and family life was disproportionate. Accordingly, there has been a violation of Article 8 of the Convention in the present case. ... | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the interference with the applicants’ right to respect for their private and family life had been disproportionate. It noted in particular the inconsistency in Italian law that denied the couple access to embryo screening but authorised medically-assisted termination of pregnancy if the foetus showed symptoms of the same disease. The Court also stressed the difference between this case, which concerned preimplantation diagnosis (PID) and homologous insemination6, and that of S.H. and Others v. Austria (see above), which concerned access to donor insemination. Although the question of access to PID raised delicate issues of a moral and ethical nature, the legislative choices made by Parliament in the matter did not elude the Court’s supervision. |
875 | Disclosure of personal data | II. RELEVANT DOMESTIC LAW AND NON-CONVENTION MATERIAL 15. The Council of Europe ’ s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, also known as the Convention on Human Rights and Biomedicine, which entered into force in respect of the Republic of Moldova on 1 March 2003, provides, in so far as relevant: “ Article 10 – Private life and right to information 1. Everyone has the right to respect for private life in relation to information about his or her health.” 16. The relevant provision of Law No. 185 on reproductive health and family planning provides as follows: “ Section 12. The right to confidentiality in realizing one ’ s rights to reproduction (1) Every person is entitled to respect for the confidentiality of information concerning his or her application to fertility institutions, the treatment received therein and the state of his or her reproductive health. ” 17. The relevant provisions of Law No. 263 on the rights and obligations of patients stipulate as follows: “ Section 12. The patient ’ s right to respect for the privacy of confidential medical information (1) All data concerning the identity and the condition of the patient, results of investigations, diagnoses, prognoses or treatment and data of a personal nature shall be confidential and shall be protected even after the patient ’ s death. (2) The confidentiality of information concerning the soliciting of medical care, examinations and treatment, as well as any other information which is medically confidential, shall be ensured by the treating doctor and the professionals involved in the providing of the medical care or biomedical research ... as well as by any other persons having learned such information by virtue of their professional duties. (3) Information which is considered to be confidential can be disclosed only with the patient ’ s or his legal representative ’ s explicit consent and under conditions approved by the patient ... (4) Disclosure of confidential information without the patient ’ s ... consent shall be possible in the following situations: a) in order to involve in the process of treatment other professionals in the field, including in the case of the urgent examination or treatment of a person incapable of expressing his or her consent because of his or her state of health, but only to the extent necessary for the taking an informed decision; b) in order to inform the State epidemiology authorities in the case of a real risk of the spreading of contagious diseases, poisoning or mass contamination; c) at the request (with reasons) of criminal investigation bodies or courts of law in connection with the carrying out of a criminal investigation or criminal proceedings, in accordance with the law; c1) at the request of the Ombudsman or of members of the consultative body of the Centre for Human Rights, in order to ensure protection against torture or other cruel or inhuman treatment; d) for the purpose of informing the parents or the legal representative of persons under eighteen years of age when providing such persons with medical care; e) when there is reason to believe that the harm to a person ’ s health has resulted from criminal or illegal activities, and information must be provided to the competent law bodies. (5) Any kind of involvement in the private or family life of a patient without his or her consent shall be forbidden. (6) Persons having obtained confidential information in the exercise of their functions, together with paramedical staff and pharmacists, are responsible under the law for any disclosure of medically confidential information ... (7) Biological products, including organs and tissue, from which identifiable data can be extracted shall also be protected. ” 18. The relevant provisions of Law No. 264 on the medical profession stipulate as follows: “ Section 13. Professional confidentiality (1) Every doctor shall be under an obligation to preserve professional confidentiality. (2) Information concerning the soliciting of medical care or the state of health, diagnosis or other information obtained by a doctor as a result of examining or treating a patient is of a private nature, constitutes medically confidential information and cannot be disclosed. (3) With the patient ’ s consent ... it shall be possible to disclose confidential information to other persons in the interests of examining and treating the patient, of carrying on scientific research, for academic purposes and for other purposes. (4) Disclosure of information which is professionally confidential to other persons without the patient ’ s ... consent shall be possible in the following circumstances: a) for the purpose of examining or treating a patient who on account of his/her health condition, is unable to express his or her wish; b) in case of a real risk of the spreading of contagious diseases, poisoning or mass contamination; c) at the request of criminal investigation bodies or courts of law in connection with the carrying out of a criminal investigation or criminal proceedings, in accordance with the law; c1) at the request of the Ombudsman or of members of the consultative body of the Centre for Human Rights, in order to ensure protection against torture or other cruel or inhuman treatment; d) in the case of providing medical care to a person who is not responsible under the law and is incapable of informing his or her parents or legal representatives; e) when there is reason to believe that the harm to a person ’ s health has resulted from criminal or illegal activities and information must be provided to the competent law bodies. (5) Persons having obtained information which amounts to professionally confidential information are responsible under the law for disclosure of such information. (6) Professional confidentiality cannot be breached even after the termination of the treatment or the death of the patient. ” 19. The relevant provision of Law No. 411 on health care stipulates as follows: “ Section 14. Professional duties and responsibiltiy for their breach 1. Doctors, other medical personnel and pharmacists are under a duty to maintain the confidentiality of information concerning diseases, or the private and family life of patients, which they come to learn in the exercise of their duties, except for cases where there is a risk of the propagation of contagious diseases and at the reasoned request of the criminal investigation authorities or courts of law.” 20. The relevant provisions of Law No. 982 on access to information, as in force at the material time, provided as follows: “ Section 8. Access to information of a personal nature (1) Information of a personal nature is considered to be information with restricted access and consists of data concerning an identified or identifiable person the disclosure of which would constitute a breach of his or her [right to respect for] private and family life. ... (7) Providers of information may disclose information of a personal nature solicited in accordance with the present law only in the following circumstances: a) the person whom the information concerns agrees to its disclosure; b) the whole of the solicited information has previously been in the public domain ... (8) If the person whom the information of a personal nature concerns does not consent to its disclosure, access to such information can be authorised by a court after it has found that the disclosure at issue is in the public interest, that is, that disclosure would pursue the aim of protecting public health, security or the environment. ” 21. The relevant provision of the Criminal Code reads as follows: “ Article 177. Breach of a person ’ s right to respect for private life (1) Unlawful gathering or disclosure of confidential information protected by law concerning a person ’ s private life, without that person ’ s consent, shall be punished by a fine of up to MDL 6,000 or by community service work of 180 to 240 hours. ” 22. The relevant provision of the Employment Code reads as follows: “ Article 91. General rules concerning the treatment by the employers of employees ’ personal data and guarantees concerning its protection With a view to ensuring the protection of human rights and freedoms, when processing the personal data of their employees, employers and their representatives are obliged to observe the following conditions: ... d) the employer has no right to obtain or store data concerning the employer ’ s political and religious views or his private life. In the cases provided for by law, the employer can request and store data concerning an employee ’ s private life only after obtaining that employee ’ s consent; ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE CONVENTION 23. The applicant complained that the disclosure of information of a medical nature by the CFD to her employer constituted a violation of her right to respect for private life as provided in Article 8 of the Convention. She also alleged that the proceedings in which her action against the CFD had been examined had been unfair because the courts had adopted arbitrary decisions and failed to give reasons for them. Articles 6 and 8 of the Convention, on which the applicant relied, read as follows: Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 24. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 25. The applicant asserted that there had been an interference with her rights guaranteed by Article 8 and that the interference had no legal basis in domestic law. Moreover, the interference had not been “ necessary in a democratic society ” because the applicant ’ s employer had not been conducting even an internal investigation, let alone a criminal one. The information disclosed by the CFD to the applicant ’ s employer was of a very personal nature and the employer already had sufficient knowledge concerning the applicant ’ s state of health from the sick leave certificates she had submitted. 26. The Government agreed that there had been an interference with the applicant ’ s right to respect for her private life. However, they argued that the interference was provided for by law, namely by Article 8 of Law No. 982 on access to information (see paragraph 20 above), had pursued a legitimate aim, and had been necessary in a democratic society. The Government stressed that, in their view, the present case very much resembled the case of M.S. v. Sweden ( 27 August 1997, Reports of Judgments and Decisions 1997 ‑ IV ) and asked the Court to adopt a similar approach to it. 2. The Court ’ s assessment 27. It is undisputed between the parties, and the Court agrees, that the disclosure by the CFD to the applicant ’ s employer of such sensitive details about the applicant ’ s pregnancy, her state of health and the treatment received constituted an interference with her right to private life. An interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article, and furthermore is “necessary in a democratic society” in order to achieve the aim (see the following judgments: Campbell v. the United Kingdom, 25 March 1992, § 34, Series A no. 233; Calogero Diana v. Italy, 15 November 1996, § 28, Reports 1996-V; and Petra v. Romania, 23 September 1998, § 36, Reports 1998-VII). 28. The expression “in accordance with the law” not only necessitates compliance with domestic law, but also relates to the quality of that law (see Halford v. the United Kingdom, 25 June 1997, § 49, Reports 1997-III). The Court reiterates that domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see Domenichini v. Italy, 15 November 1996, § 33, Reports 1996-V; Avilkina and Others v. Russia, no. 1585/09, § 35, 6 June 2013 ). 29. In their submissions, the Government referred to section 8 of Law 982 on access to information (see paragraph 20 above) as being, in their view, the legal basis for the interference. The Court notes, firstly, that it was only the Government and not the Supreme Court of Justice that referred to such legal basis for the interference. In fact, the Supreme Court merely stated that the CFD was entitled to disclose the information to the applicant ’ s employer, without citing any legal basis for such disclosure. 30. Secondly, even assuming that the Supreme Court had intended to rely on that provision, the Court notes that under section 8 of that Law a doctor would not be entitled to disclose information of a personal nature even to the applicant ’ s employer without her consent. 31. In fact, the Court notes that all the relevant domestic and international law cited above expressly prohibits disclosure of such information to the point that it even constitutes a criminal offence. There are exceptions to the rule of nondisclosure; however, none of them seems to be applicable to the applicant ’ s situation. Indeed, the Government did not show that any such exception was applicable. It follows that the interference complained of was not “in accordance with the law” within the meaning of Article 8. Accordingly, there is no need to examine whether the interference pursued a legitimate aim or was “necessary in a democratic society”. 32. The Court therefore finds that there has been a violation of Article 8 of the Convention in respect of the applicant ’ s right to respect for her private life. In view of this conclusion it also holds that no separate issue arises under Article 6 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 34. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 35. The Government disputed the amount claimed by the applicant and reiterated their position that there had been no violation in the present case. Alternatively, they considered that a finding of a violation would in itself constitute sufficient just satisfaction. 36. Having regard to the violation found above, the Court considers that an award of just satisfaction for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,500. B. Costs and expenses 37. The applicant also claimed EUR 1,440 for the costs and expenses incurred before the Court. The applicant submitted relevant documents in support of her claims. 38. The Government objected and argued that the amount was excessive. 39. The Court awards the entire amount claimed for costs and expenses. C. Default interest 40. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention, finding that the interference with the exercise of the right to respect for private life complained of by the applicant was not “in accordance with the law” within the meaning of Article 8. |
751 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution of Ireland 28. The Constitution of Ireland contains the following provisions: Article 40 "1. All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function. ... 3. 1 o The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2 o The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen." Article 43 "1. 1 o The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods. 2 o The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property. 2. 1 o The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice. 2 o The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good." B. Planning law 1. Permissions, outline permissions and approvals 29. In addition to the 1982 Act (see paragraphs 14-16 above), the principal legislation pertinent to this case was the Local Government (Planning and Development) Act 1963, as amended by the 1976 Act of the same title ("the 1963 Act"). The 1963 Act and regulations made thereunder provided for the grant by planning authorities of "permissions" and "outline permissions" for the development of land. Permissions were complete in themselves. Outline permissions amounted to a favourable decision as to the principle of the proposed development but were granted subject to the subsequent approval, by the authority or on appeal, of detailed plans, without which approval work could not be commenced. The authority had to examine an application for such approval within the parameters set by the outline permission and could not reopen the question of principle. Outline planning permissions could be revoked but only in the event of a change in circumstances relating to the proper planning and development of the area. 30. In dealing with any application for permission or approval a planning authority was restricted, by section 26(1) of the 1963 Act, to considering "the proper planning and development of [its] area". An appeal against a decision of a planning authority lay to the Minister for Local Government or, after 15 March 1977 (see paragraph 15 above), to the Planning Board. Under section 26(5)(b) of the 1963 Act, the provisions of section 26(1) applied, subject to any necessary modifications, to the determination of any such appeal. If a question of law arose on an appeal, the Minister or the Board could refer it to the High Court for decision (section 82(3)). 31. Under the 1963 Act, planning permissions, which had to be recorded in a register kept by the planning authority, enured for the benefit of the land in question and of "all persons for the time being interested therein" (sections 8 and 28(5)). 2. Compensation 32. Subject to a number of exceptions set out in section 56, section 55(1) of the 1963 Act gave a right to compensation in the following terms: "If, on a claim made to the planning authority, it is shown that, as a result of a decision under Part IV of this Act involving a refusal of permission to develop land ... the value of an interest of any person existing in the land to which the decision relates at the time of the decision is reduced, such person shall, subject to the provisions of this Part of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value and, in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried on on the land." Claims for compensation under this section had to be made within six months of notification of the decision, unless the Circuit Court accepted an application for an extension of this period (section 55(6)). 3. Purchase notice 33. Under section 29(1) of the 1963 Act: "Where, in a case determined on an appeal under this Part of this Act, permission to develop any land has been refused or has been granted subject to conditions, then, if the owner of the land claims (a) that the land has become incapable of reasonably beneficial use in its existing state, and (b) that the land cannot be rendered capable of reasonably beneficial use by the carrying out of any other development for which permission has been granted under this Part of this Act, or for which the planning authority have undertaken to grant such permission, and (c) in a case where permission to develop the land was granted as aforesaid subject to conditions, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with those conditions, he may, at any time within the period of six months after the decision (or such longer period as the Minister may allow), serve on the planning authority a [purchase notice] requiring the planning authority to purchase his interest in the land in accordance with the provisions of this section." The value of land which was the subject of such a purchase notice was to be taken to be "the amount which the land if sold in the open market by a willing seller might be expected to realise". C. Independence of the judicial function 34. It was established by the Supreme Court in Buckley and others (Sinn Fein) v. Attorney General [1950] Irish Reports 67 that the legislature cannot intervene in respect of cases pending before the courts. On the other hand, it appears that the legislature may validly reverse the decision of the courts with retrospective effect once the proceedings are terminated, without thereby infringing the principle of judicial independence (see, for example, the Garda Siochána Act 1979, reversing the Supreme Court decision in Garvey and others v. Ireland [1981] Irish Reports 75). PROCEEDINGS BEFORE THE COMMISSION 35. In their application (no. 12742/87) lodged with the Commission on 6 January 1987, the applicants submitted that the respondent State ’ s alleged failure to validate retrospectively the outline planning permission or to provide compensation or other remedy for the reduction in value of their property constituted a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention. They also complained of discrimination in the enjoyment of their property rights, contrary to Article 14 of the Convention taken in conjunction with the said Article 1 (art. 14+P1-1). Finally, they claimed that they did not have an effective remedy under Irish law in respect of the foregoing complaints as required by Article 13 (art. 13) of the Convention. 36. The Commission declared the application admissible on 3 May 1989. In its report of 6 June 1990 (Article 31) (art. 31), it expressed the opinion that: (a) there had been no violation of the rights under Article 1 of Protocol No. 1 (P1-1) of Pine Valley (unanimously), of Healy Holdings (nine votes to four), or of Mr Healy (ten votes to three); (b) there had been a violation of the rights under Article 14 of the Convention in conjunction with the said Article 1 (art. 14+P1-1) of Healy Holdings and of Mr Healy (twelve votes to one), but not of those of Pine Valley (unanimously); (c) there had been no violation of Article 13 (art. 13) of the Convention (unanimously). The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 37. In their memorial the Government requested the Court: "(1) With regard to the preliminary submissions, to decide and declare that: (a) the applicants cannot claim to be victims within the meaning of Article 25 (art. 25) of the Convention; (b) the applicants have not exhausted their domestic remedies as required by Article 26 (art. 26) of the Convention. (2) With regard to Article 1 of Protocol No. 1 (P1-1): to decide and declare that there has been no breach of Article 1 of Protocol No. 1 (P1-1) in the case of the applicants. (3) With regard to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 ((art. 14+P1-1): to decide and declare that there has been no breach of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1) in respect of all three applicants or any of them. (4) With regard to Article 13 (art. 13) of the Convention: to decide and declare that there has been no breach of Article 13 (art. 13) of the Convention. (5) With regard to Article 50 (art. 50) of the Convention: (a) to decide and declare that an award of compensation is not justified or appropriate; (b) alternatively, if and in so far as a breach of any Article of the Convention is found, to decide and declare that a finding of violation in itself constitutes sufficient just satisfaction in the circumstances pleaded." At the hearing on 21 May 1991 the Government confirmed these submissions in substance but added that, in their view, any ruling on the question of the application of Article 50 (art. 50) should be reserved. AS TO THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS A. Introduction 38. The primary object of the Government ’ s application referring the case to the Court was to seek a ruling that the case was inadmissible on the basis of the preliminary pleas and objections they advanced. At the hearing on 21 May 1991 the Delegate of the Commission submitted that the Court should depart from the precedent set in its De Wilde, Ooms and Versyp judgment of 18 June 1971 (Series A no. 12) and should not review the Commission ’ s decisions on admissibility. 39. The Court is unable to accept this submission. Since 1971, and most recently in the Cardot judgment of 19 March 1991 and the Oberschlick judgment of 23 May 1991 (Series A nos. 200 and 204), it has - when the occasion arose - exercised its jurisdiction to examine objections of the kind put forward by the Government and it does not consider that it should now depart from this case-law and practice. It notes that the objections in question were filed in due time for the purposes of Rule 48 para. 1 of the Rules of Court. B. Whether the applicants can claim to be "victims" of a violation of the Convention 40. The Government submitted that the applicants could not claim to be "victims" of a violation of the Convention on the following grounds: (a) as regards Pine Valley : ( i ) it had sold the land in question before the Supreme Court, in its decision of 5 February 1982, held that the grant of outline planning permission was a nullity (see paragraphs 11-12 above); (ii) it had been struck off the register of companies on 26 October 1990 and dissolved on 6 November (see paragraph 8 above); (b) as regards Healy Holdings, the receiver appointed to this company on 14 October and 29 November 1985 (see paragraph 8 above) was not a party to the proceedings before the Convention institutions; (c) as regards Mr Healy: ( i ) he traced his claim through Healy Holdings as its sole beneficial shareholder; (ii) he ranked in priority after that company ’ s secured creditors; (iii) he had been adjudged bankrupt in England on 19 July 1990 (see paragraph 8 above). 41. The Court notes that the Government raised before the Commission, prior to its admissibility decision of 3 May 1989, the substance of most of the foregoing pleas (see page 51 of the Commission ’ s report). The only exceptions are the events mentioned at (a) (ii) and (c) (iii) but these, by reason of their dates, could not have been relied on before that decision. The Government therefore did not fail to advance the relevant submissions in due time, with the result that no question of estoppel arises (see, inter alia, the Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 28, para. 58). 42. As to the merits of the pleas, the Court would make at the outset the general observation that Pine Valley and Healy Holdings were no more than vehicles through which Mr Healy proposed to implement the development for which outline planning permission had been granted. On this ground alone it would be artificial to draw distinctions between the three applicants as regards their entitlement to claim to be "victims" of a violation. More specifically, with respect to Pine Valley, neither its sale of the land nor its later dissolution alters the fact that it was for a certain period of time, as one of those vehicles, the owner of the property to which the planning permission attached. Indeed, it was this company that applied for planning approval in August 1982 and initiated the proceedings in the second Pine Valley case (see paragraphs 18 and 20 above). In the Court ’ s view, this suffices to permit a claim of violation to be made on its behalf. The Government ’ s remaining pleas all turn, directly or indirectly, on the financial status of Healy Holdings and Mr Healy. Whilst that status may, of course, be of importance or have effects on the domestic level, it is, in the Court ’ s opinion, of no relevance as far as entitlement to claim to be a victim of a violation is concerned. Insolvency cannot remove the right which Article 25 (art. 25) of the Convention confers on "any person". 43. The Court thus concludes that the Government ’ s pleas under this head must be dismissed. C. Whether the applicants had failed to exhaust domestic remedies 44. The Government submitted that the applicants had not exhausted domestic remedies because they had failed: (a) as regards Dublin County Council ’ s decision of 10 December 1982 refusing planning approval (see paragraph 18 above): ( i ) to seek judicial review thereof; (ii) to appeal to the Planning Board (see paragraph 30 above); (iii) to seek compensation under section 55 of the 1963 Act (see paragraph 32 above); (iv) to have recourse to the machinery whereby a planning authority may be required to purchase land in respect of which permission to develop has been refused on appeal (section 29 of the same Act; see paragraph 33 above), such recourse having been precluded by the applicants ’ own failure to appeal to the Planning Board; (b) as regards the 1982 Act (see paragraphs 14-15 above): ( i ) to seek a court declaration that they were entitled to the benefit of section 6(1) thereof and, if necessary, that section 6(2) thereof did not apply to their circumstances; (ii) if necessary, to seek a court declaration challenging the constitutional validity of section 6(2) thereof if it had the consequence of excluding them from the benefit of section 6(1); (c) to bring an action against Mr Thornton, the previous owner of the land (see paragraph 9 above), for breach of covenant of title or for unjust enrichment. 45. The pleas listed at (b) and (c) above were raised by the Government when the Commission was examining the admissibility of the application (see pages 52-53 of its report), so that no question of estoppel arises in their regard. The same cannot, however, be said concerning the pleas listed at (a). At the Commission ’ s hearing of 3 May 1989 on admissibility and merits, the Government did refer briefly to sections 55 and 29 of the 1963 Act, but these references were made in the context of Article 25 (art. 25) of the Convention and the question whether the applicants could claim to be "victims" of a violation; the Government are therefore estopped from relying on these provisions in support of a plea of non-exhaustion of domestic remedies (see the Isgrò judgment of 19 February 1991, Series A no. 194-A, p. 11, para. 29). At the same hearing the Government did make a passing reference, in the context of a plea of non-exhaustion of domestic remedies, to the applicants ’ failure to challenge or appeal against the 1982 decision of Dublin County Council. However, these points were not then dealt with in argument, with the result that the Government must be regarded as estopped from relying on them now. It is true that, after the Commission ’ s admissibility decision and in support of a request made under Article 29 (art. 29), the Government did expand on all the matters listed at (a). However, there was, in fact, nothing to prevent them from doing this earlier (see the Artico judgment of 13 May 1980, Series A no. 37, pp. 13-14, para. 27). 46. In the result, there fall to be considered on their merits the Government ’ s submissions that the applicants should have sought a declaration or declarations concerning the 1982 Act and should have sued Mr Thornton. 47. As regards the first of these alleged remedies, the Government contended that section 6(1) of the 1982 Act applied to the applicants ’ outline permission and rendered it valid, and accordingly that, when Dublin County Council refused their application for approval on 10 December 1982, they ought to have applied to the High Court for a declaration that they were entitled to the benefit of the section or, if they were not, that section 6(2) was invalid having regard to the Constitution. This contention of the Government is inconsistent with the attitude they adopted to the interpretation of section 6 in the second Pine Valley case. In their statement of claim in that case the applicants pleaded that they could not "by operation of law avail of the retrospective validity afforded by" section 6(1) of the 1982 Act (see paragraph 25 above). In their defence the Government did not deny this plea (ibid.). Accordingly, the attitude of the Government, in their pleadings, was that they accepted that the applicants ’ outline permission was not validated by section 6(1). And it is clear that the Government did not argue to the contrary during the hearing of the case but maintained the same attitude. Mr Justice Lardner stated in his judgment that section 6(2) of the 1982 Act "has been accepted by counsel for both sides ... as excluding the appellants from the benefit of section 6(1)" (ibid.). The Government are now adopting a totally different attitude. Yet they cannot validly put forward before the Court arguments which they never made in the domestic court and which are inconsistent with the stance they adopted there. Furthermore, the Court finds persuasive the applicants ’ contention that even if they could have succeeded in obtaining the appropriate declaration, it would not have been possible to obtain it in time to enable them to develop the lands pursuant to the outline permission, since this was due to expire on 10 March 1984 (see paragraph 16 above). The earliest an action for a declaration could have been commenced was December 1982, which left only fifteen months approximately in which not merely to complete the proceedings (which could have included an appeal to the Supreme Court) but also to obtain detailed planning approval and commence building. No extension of the period of validity of the outline permission could have been obtained unless substantial works had been carried out before it expired, and such works could not have been commenced until detailed planning approval had been obtained (see paragraphs 16 and 29 above). In these circumstances, the actions for a declaration suggested by the Government cannot be regarded as "effective" remedies which Article 26 (art. 26) obliged the applicants to exhaust: a remedy which will not bear fruit in sufficient time does not fall within this category (see, mutatis mutandis, the Ciulla judgment of 22 February 1989, Series A no. 148, p. 15, para. 32). For these reasons, this limb of the Government ’ s objection must be dismissed. 48. The same applies to the action or actions which the Government submitted should have been instituted against Mr Thornton (item (c) of paragraph 44 above). Even assuming that these actions were available to the applicants, the Government have not challenged their contention that the measure of damages obtainable would not have been such as to permit them to recoup the entirety of their losses. Above all, Article 26 (art. 26) requires the exhaustion only of remedies that relate to the breaches alleged (see, inter alia, the de Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no. 77, p. 19, para. 39): to sue a private individual cannot be regarded as such a remedy in respect of a positive act on the part of the State. D. Conclusion 49. To sum up, the Court is able to take cognisance of the merits of the case, in its entirety and as regards all three applicants. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1) 50. The applicants submitted that, as a result of the Supreme Court ’ s decision holding the outline planning permission to be invalid, coupled with the respondent State ’ s alleged failure to validate that permission retrospectively or its failure to provide compensation for the reduction in value of their property, they had been victims of a breach of Article 1 of Protocol No. 1 (P1-1) to the Convention, which provides: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." This submission, which was contested by the Government, was not accepted by the Commission. A. Whether there was an interference with a right of the applicants 51. Bearing in mind that in the first Pine Valley case (see paragraph 12 above) the Supreme Court held that the outline planning permission granted to Mr Thornton was a nullity ab initio, a first question that arises in this case is whether the applicants ever enjoyed a right to develop the land in question which could have been the subject of an interference. Like the Commission, the Court considers that this question must be answered in the affirmative. When Pine Valley purchased the site, it did so in reliance on the permission which had been duly recorded in a public register kept for the purpose and which it was perfectly entitled to assume was valid (see paragraphs 9 and 31 above). That permission amounted to a favourable decision as to the principle of the proposed development, which could not be reopened by the planning authority (see paragraph 29 above). In these circumstances it would be unduly formalistic to hold that the Supreme Court ’ s decision did not constitute an interference. Until it was rendered, the applicants had at least a legitimate expectation of being able to carry out their proposed development and this has to be regarded, for the purposes of Article 1 of Protocol No. 1 (P1-1), as a component part of the property in question (see, mutatis mutandis, the Fredin judgment of 18 February 1991, Series A no. 192, p. 14, para. 40). 52. The Government contended that there had been no interference with any right of the applicants under Article 1 of Protocol No. 1 (P1-1) since the outline planning permission had been retrospectively validated by section 6(1) of the 1982 Act (see paragraph 15 above). The Court recalls that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, amongst various authorities, the Eriksson judgment of 22 June 1989, Series A no. 156, p. 25, para. 62). In the present case, a number of the members of the Supreme Court expressed the opinion, in the second Pine Valley case, that the applicants were excluded from the benefit of section 6(1) (see paragraph 25 above); furthermore, a different view was not taken by the other national authorities involved, namely Dublin County Council and the Planning Board (see paragraphs 18-19 above). The Government maintained, however, that the question of the interpretation of section 6 of the 1982 Act was not before the Supreme Court for decision and that the observations made by its members on this subject were no more than obiter dicta. The Court must, whatever the weight of those observations in domestic law, be guided by such pronouncements of the national authorities as exist on the subject, especially those emanating from members of the highest court of the land. Bearing also in mind that in the second Pine Valley case the defendants (one of whom was the State) accepted, at least tacitly, that the applicants did not have the benefit of section 6(1) of the 1982 Act (see paragraph 47 above), it cannot now be claimed that their outline planning permission was retrospectively validated by that provision. The Court must therefore proceed on the basis that it was not. 53. The applicants accepted the Commission ’ s view that there had been no interference with the rights of Pine Valley since it had sold the land in question before the Supreme Court ’ s decision in the first Pine Valley case (see paragraphs 11-12 above), with the result that the losses were borne by the other applicants. Whilst the existence of a violation is conceivable even in the absence of detriment (see, inter alia, the Groppera Radio AG and Others judgment of 28 March 1990, Series A no. 173, p. 20, para. 47), the Court concurs in the result. Pine Valley had parted with ownership of the land, without retaining any right thereover that was protected by Article 1 of Protocol No. 1 (P1-1). That provision, whether taken alone (P1-1) or in conjunction with Article 14 (art. 14+P1-1) of the Convention, therefore did not apply to this applicant. 54. The Court thus concludes that there was an interference with the right of Healy Holdings and Mr Healy to the peaceful enjoyment of their possessions. This conclusion is not affected by three other points on which the Government relied. (a) Firstly, the possibility open to the applicants of seeking some other planning permission does not alter the fact that they lost the benefit of the one they already had. (b) Secondly, the fact that the Minister for Local Government acted bona fide in granting permission to Mr Thornton has no bearing whatsoever on the effects of the Supreme Court ’ s decision in the first Pine Valley case. (c) Thirdly, the applicants ’ failure to seek compensation under section 55 of the 1963 Act (see paragraph 32 above) cannot be regarded as excluding the existence of an interference, since this remedy might, at most, have provided redress for the consequences after the event. Besides, the Government did not cite any case-law contradicting the applicants ’ view that this section was not applicable to a refusal of planning approval, neither have they clearly established that the quantum of compensation payable would have covered the entirety of the applicants ’ losses. B. The Article 1 (P1-1) rule applicable to the case 55. The applicants contended that the interference in question, by annulling the outline planning permission, constituted a "deprivation" of possessions, within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1). The Commission, on the other hand, saw it as a "control of the use of property", within the meaning of the second paragraph of that provision. 56. There was no formal expropriation of the property in question, neither, in the Court ’ s view, can it be said that there was a de facto deprivation. The impugned measure was basically designed to ensure that the land was used in conformity with the relevant planning laws and title remained vested in Healy Holdings, whose powers to take decisions concerning the property were unaffected. Again, the land was not left without any meaningful alternative use, for it could have been farmed or leased. Finally, although the value of the site was substantially reduced, it was not rendered worthless, as is evidenced by the fact that it was subsequently sold in the open market (see paragraph 13 above). Accordingly, as for example in the Fredin case (see the above-mentioned judgment, Series A no. 192, pp. 14-15, paras. 42-47), the interference must be considered as a control of the use of property falling within the scope of the second paragraph of Article 1 (P1-1). C. Compliance with the conditions laid down in the second paragraph of Article 1 (P1-1) 1. Lawfulness and purpose of the interference 57. The applicants did not dispute that the interference was in conformity with planning legislation and, like that legislation, was designed to protect the environment (see paragraph 9 above). This, in the Court ’ s view, is clearly a legitimate aim "in accordance with the general interest" for the purposes of the second paragraph of Article 1 (P1-1) (see the same judgment, p. 16, para. 48). 2. Proportionality of the interference 58. The applicants maintained that, in the absence of compensation or retrospective validation of their outline planning permission, the interference complained of could not be described as proportionate to the aim pursued. 59. Although the annulment by the Supreme Court of the planning permission was pronounced in proceedings to which the applicants were party, its consequences were not confined to them, as is evidenced by the fact that legislation - the 1982 Act - was subsequently passed with the intention of validating retrospectively the permissions affected. Indeed, the applicants would have found themselves in the same position if a similar decision had been handed down in a case in which they had not been involved. The interference was designed and served to ensure that the relevant planning legislation was correctly applied by the Minister for Local Government not simply in the applicants ’ case but across the board. The decision of the Supreme Court, the result of which was to prevent building in an area zoned for the further development of agriculture so as to preserve a green belt (see paragraph 9 above), must be regarded as a proper way - if not the only way - of achieving that aim. The applicants were engaged on a commercial venture which, by its very nature, involved an element of risk (see, mutatis mutandis, the Håkansson and Sturesson judgment of 21 February 1990, Series A no. 171-A, pp. 17-18, paras. 53 and 55, and the above-mentioned Fredin judgment, Series A no. 192, pp. 17-18, para. 54) and they were aware not only of the zoning plan but also of the opposition of the local authority, Dublin County Council, to any departure from it (see paragraphs 10 and 12 above). This being so, the Court does not consider that the annulment of the permission without any remedial action being taken in their favour can be regarded as a disproportionate measure. D. Conclusion 60. The Court thus concludes that there has been no violation of Article 1 of Protocol No. 1 (P1-1) as regards any of the applicants. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 1 (art. 14+P1-1) 61. The applicants alleged that since the remedial action taken by the legislature in the shape of section 6 of the 1982 Act benefited all the holders of permissions in the relevant category other than themselves, they had been victims of discrimination contrary to Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1). The former provision reads as follows: "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." This allegation was contested by the Government, but accepted by the Commission as regards Healy Holdings and Mr Healy. 62. The Court recalls that, for the reasons set out in paragraph 53 above, Article 14 (art. 14) is not applicable as far as Pine Valley is concerned. 63. The Government contended, in this context also, that the applicants ’ outline planning permission had been validated by the 1982 Act and that, accordingly, no question of discrimination arose. The Court has already dealt with this contention in paragraph 52 above and rejects it on the grounds there stated. 64. The Government did not rely on the observations made by certain members of the Supreme Court in this connection (see paragraph 26 above) nor did they advance any other justification for the difference of treatment between the applicants and the other holders of permissions in the same category as theirs. The Court therefore finds that there has been a violation of Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 (art. 14+P1-1), as regards Healy Holdings and Mr Healy. IV. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION 65. The applicants further submitted that they had had no effective remedy whereby they could raise before a national authority the substance of their Convention complaints. They recalled that their claim for damages had been dismissed in the second Pine Valley case and maintained that there was no remedy for the discrimination inherent in section 6 of the 1982 Act. In their view, there had accordingly been a violation of Article 13 (art. 13) of the Convention, which provides: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 66. The Court agrees with the Government and the Commission that this submission has to be rejected. The applicants not only could but also did raise the substance of their Convention complaints (including that relating to the discriminatory effect of the 1982 Act) before the Irish courts in the second Pine Valley case (see paragraphs 20-27 above). And it has to be recalled that the effectiveness of a remedy, for the purposes of Article 13 (art. 13), does not depend on the certainty of a favourable outcome (see, inter alia, the Soering judgment of 7 July 1989, Series A no. 161, p. 48, para. 122). V. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 67. Under Article 50 (art. 50) of the Convention, "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The question of applying Article 50 (art. 50) does not arise as regards Pine Valley, no violation having been found in respect of this company. In fact, this provision was relied on only by Healy Holdings and Mr Healy, who claimed compensation for pecuniary and non-pecuniary damage, together with reimbursement of certain costs and expenses they had incurred in Ireland. At the hearing on 21 May 1991, the Delegate of the Commission reserved his position on these claims. Counsel for the Government did likewise, although he also submitted that certain of the claims had been presented to the Court out of time. 68. In these circumstances the Court considers that the question of the application of Article 50 (art. 50) is not ready for decision and must be reserved. | The Court held that there had been no violation of Article 1 of Protocol No. 1 to the Convention, finding that the annulment of the building permission could not be considered disproportionate to the legitimate aim of preservation of the environment. It noted in particular that the interference in question had been designed and served to ensure that the relevant planning legislation was correctly applied by the Minister for Local Government not simply in the applicants’ case but across the board. The decision of the Supreme Court, the result of which had been to prevent building in an area zoned for the further development of agriculture so as to preserve a green belt, was therefore to be regarded as a proper way – if not the only way – of achieving that aim. Furthermore, the applicants were engaged on a commercial venture which, by its very nature, involved an element of risk, and they were aware not only of the zoning plan but also of the opposition of the local authority, to any departure from it. |
979 | Inhuman and / or degrading conditions of detention | II. RELEVANT DOMESTIC LAW A. Provisions on sentencing and the execution of sentences and detention measures ... 27. Law no. 254/2013 on sentencing and the execution of sentences and detention measures came into force on 1 February 2014, repealing Law no. 275/2006. Its implementing regulations were published on 1 1 April 2016. Law no. 254/2013 provides that persons deprived of their liberty may complain to a post-sentencing judge if they consider that the conditions of their detention do not comply with the domestic rules on detainees ’ accommodation. The rules in question are laid down in Order no. 433/2010 of the Ministry of Justice, in force as from 1 5 February 2010, and concern the compulsory standards for detention in prisons ( see paragraph 34 below ). The judge may order the management of a custodial facility to remedy the problems complained of. The judge ’ s decisions can be challenged in the district court within whose jurisdiction the custodial facility lies and are binding on the facility in question. 28. On 1 February 2014 a new Code of Criminal Procedure ( “ the NCCP ” ) came into force. The NCCP provides for new preventive measures in the context of criminal proceedings, such as judicial supervision ( Articles 211-215 1 ), judicial supervision on bail (Articles 216-217) and house arrest ( Articles 218 - 222). ... 29. A new Criminal Code ( “ the NCC ” ) came into force on 1 February 2014. 30. The NCC has retained the three main penalties provided for in the former Criminal Code : life imprisonment, fixed-term imprisonment and fines ( Article 5 3 of the NCC ). 31. Prisoners sentenced to life imprisonment may be released on parole if they have served at least twenty years of their sentence, have displayed good conduct and have satisfied all the civil obligations imposed in the sentencing judgment (Article 99 of the NCC ). Prisoners sentenced to fixed-term imprisonment may be released on parole if they have already served two-thirds of a sentence of up to ten years, or three-quarters of a sentence of more than ten and less than twenty years, if they are serving their sentence under an open or semi-open regime, if they have satisfied all the civil obligations imposed in the sentencing judgment, and if the court is in favour of their reintegration into society ( Article 1 00, paragraph 1, of the NCC ). 32. The imposition of a sentence may be waived under Article 80 of the NCC if the offence is not a serious one and the court considers that the convicted person ’ s conduct, his or her efforts to mitigate the effects of the acts committed and the prospects of rehabilitation justify such a measure. The measure provided for in Article 80 is not applicable to anyone who has a previous conviction or has evaded prosecution or trial, or to offences carrying a sentence of more than five years ’ imprisonment. The NCC provides for the possibility of suspending a sentence consisting of a fine or less than two years ’ imprisonment in the light of the person ’ s conduct prior to conviction, subject to fulfilment of the civil obligations imposed in the sentencing judgment (Articles 83-90 of the NCC ). Lastly, under Article 1 59 of the NCC, the parties may reach a friendly settlement avoiding criminal liability where the proceedings were instituted by the prosecuting authorities of their own motion. 33. Law no. 252/2013, which came into force on 1 February 2014, governs the organisation and operation of the probation system. ... B. Provisions concerning liability in tort 36. Article 1 349 § 1 of the Civil Code provides that everyone must observe the rules of conduct imposed by the law or local custom and refrain from interfering, through actions or inaction, with the rights or legitimate interests of others. Any act committed by a person that causes damage to another renders the person through whose fault the damage was caused liable to make reparation for it ( Article 1 357 of the Civil Code). C. Statistical data concerning the number of detainees in facilities operated by the ANP 37. The National Prison Administration ( Administraţia Naţională a Penitenciarelor – “the ANP”) publishes statistics on its website [2] concerning the number of detainees in all facilities under its authority. These statistics indicate that 33, 434 people were being held on 3 1 December 2013, 28, 225 on 2 6 January 2016 and 28, 062 on 9 August 2016, in facilities with a total capacity of 18, 820 places. According to the same data, the occupancy rate of all facilities under the ANP ’ s authority was 154. 36% on 2 3 June 2015, 153. 87% on 1 4 July 2015, 150. 92% on 1 5 September 2015, 150. 74% on 2 9 March 2016, 150. 41% on 1 7 May 2016 and 149. 11% on 9 August 2016. In calculating the occupancy rate, the ANP used a figure of 4 sq. m of living space per detainee, as provided in Order no. 433/2010 ... D. Recommendations issued by the People ’ s Advocate ... 39. In his Recommendation no. 26 of 7 November 2014 the People ’ s Advocate noted that at Miercurea-Ciuc Prison there was severe overcrowding (1 sq. m of living space per prisoner ), poor lighting, no laundry-drying facilities, insufficient furniture, no canteen for serving meals and an infestation of bedbugs. At Târgu-Jiu Prison, the People ’ s Advocate noted on 1 7 November 2014 that there was overcrowding ( between 1. 21 and 2. 52 sq. m of living space per prisoner ) and no canteen (Recommendation no. 29). On the same date he observed that the water supply for prisoners at Jilava Prison was unfit for consumption (Recommendation no. 30) and that at Galaţi Prison there was very severe overcrowding (183. 99%), insufficient furniture and no permanent water supply (Recommendation no. 31). 40. On 2 4 November 2015 the People ’ s Advocate investigated matters including allegations of poor detention conditions at Botoşani Prison. He observed that one complainant was being held in an overcrowded cell (2. 13 sq. m per prisoner ), meals were served in the cells, the showers were unfit for use and, according to the complainant ’ s fellow inmates, there were sometimes rats, mice, lice and bedbugs (Recommendation no. 24). Overcrowding (2. 21 sq. m per prisoner ), insufficient washrooms and toilets that were not partitioned off were also observed at Pelendava Prison (Recommendation no. 28 of 23 December 2015). During an inspection of Botoşani Prison in 2016, the People ’ s Advocate noted that the prison ’ s occupancy rate was 159.88% in November 2015, that one complainant ’ s cell had 2 sq. m of living space and that the mattresses were very worn out. According to the complainant ’ s fellow inmates, there were bedbugs. The People ’ s Advocate also found that the furniture was inadequate and insufficient and that there was insufficient natural light and artificial lighting (Recommendation no. 10 of 30 March 2016). E. Legislative initiative to improve detention conditions in ANP facilities 41. From 3 to 13 November 2016 the Ministry of Justice held a public consultation on a Bill to amend Law no. 254/2013 on sentencing and the execution of sentences and detention measures. The Bill seeks to introduce a compensation scheme whereby detainees who are victims of chronic overcrowding are entitled to a three-day remission of their sentence for each period of thirty days spent in overcrowded cells. On 2 3 November 2016 the Romanian Government approved the Bill to amend Law no. 254/2013. The Bill will then have to be examined by Parliament. III. RELEVANT COUNCIL OF EUROPE MATERIALS A. The Committee of Ministers 42. On 30 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation. The Recommendation reads as follows, in particular: “ The Committee of Ministers, under the terms of Article 1 5.b of the Statute of the Council of Europe, ... Recommends that governments of member states: - take all appropriate measures, when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation, to apply the principles set out in the Appendix to this Recommendation; Appendix to Recommendation No. R (99) 22 THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 59. The applicants submitted that the respective conditions of their detention in Gherla, Aiud, Oradea, Craiova, Târgu-Jiu, Pelendava, Rahova, Tulcea, Iaşi and Vaslui Prisons and the Baia Mare police detention facility amounted to inhuman or degrading treatment breaching Article 3 of the Convention. Article 3 provides: “ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ” ... B. Merits ... 2. The Court ’ s assessment ... 88. ... The Court considers that the conditions of the applicants ’ detention, also taking into account the duration of their incarceration, have subjected them to hardship going beyond the unavoidable level of suffering inherent in detention. 89. There has therefore been a violation of Article 3 of the Convention. III. APPLICATION OF ARTICLE 4 6 OF THE CONVENTION 90. Article 4 6 of the Convention, in its relevant parts, provides: “ 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ... ” A. The parties ’ submissions 1. The Government 91. The Government stated that the Romanian authorities had introduced a series of important measures aimed at ensuring full observance of Article 3 of the Convention. Indicating that they were aware of the Court ’ s findings concerning detention conditions and the case-law it had developed following the Iacov Stanciu v. Romania judgment (no. 35972/05, 24 July 2012), the Government gave assurances that they had redoubled their efforts to improve material conditions of detention and reduce overcrowding rates in prisons. Legislative, administrative and budgetary measures had been taken to that end. 92. In this connection the Government cited the NCC, the NCCP, the Law on Execution of Sentences and the Law governing the organisation and operation of the probation system (see paragraphs 27, 28, 29 and 33 above ). They submitted that, as far as pre-trial detention was concerned, the NCC provided for alternative measures ( house arrest, judicial supervision on bail ) and that, with regard to post-conviction detention, the statutory maximum sentence for certain offences had been reduced and fines had replaced prison sentences ( for example, for property-related offences ). They also referred to Article 6 4 of the NCC ( replacement of a fine by community service), Article 80 of the NCC ( some 49, 000 individuals had had the imposition of a sentence waived in 2014) and Article 83 of the NCC ( suspension of a sentence ). Law no. 213/2013 had contributed to reducing the prison population and would continue to do so. Thus, between 2013 and 2014 there had been a decline in the number of people placed in pre-trial detention ( by 31. 75%), the number of people admitted to prison ( by 20%) and the total number of individuals committed for trial. A significant decline in the number of accused persons standing trial for property-related offences had been recorded in 2014 in relation to the period from 2011 to 2013. An increasing number of prisoners had been released on parole between 2013 and 2014. The probation system was becoming increasingly effective and now included 2 6, 749 people in its records. The Government noted that the People ’ s Advocate was one of the institutions monitoring detention conditions under the national prevention programme. 93. The Government also referred to the measures planned under the “ Strategy for the Development of the Judiciary 2015-2020 ”, which were aimed in particular at improving detention conditions and increasing the prospects of social reintegration for detainees. In their submission, a “Social Rehabilitation Strategy”, adopted in June 2015, would in the medium and long term bring about a lasting reduction in crime and the prison population. 94. The Government noted that substantial resources had been set aside for renovating certain police detention facilities and increasing the capacity of some prisons (1, 164, 000 euros (EUR) in 2014). In addition, plans to build two new prisons ( providing a further 1, 000 places) had been given budgetary approval in 2015. 95. With regard to monitoring detention conditions, the Government stated that a coordination service for pre-trial detention institutions was responsible for centralising data on occupancy rates in those facilities. According to data from the service, the average length of detention on remand in police detention facilities was approximately thirty days. Detainees who did not have 4 sq. m of living space were transferred to other detention facilities. At ANP level, the monitoring of detainees in prisons had alleviated the effects of overcrowding. The ANP ’ s budget had increased by EUR 225, 000 in 2015. Since March 2015, following a decision by the director of the ANP, female prisoners and anyone detained in educational facilities had been given permanent access to hot water. 96. Regarding domestic remedies, the Government submitted that the existing legislative framework, namely Law no. 254/13 ( see paragraph 27 above ) afforded an effective preventive remedy in respect of material conditions of detention. The remedy consisted in applying to the post-sentencing judge, who ordered the prisons concerned to provide detainees with the minimum accommodation standards as laid down in the Court ’ s case-law. With a view to executing the relevant judgments, the ANP had recommended that the prisons transfer certain prisoners to other cells or other prisons. The Government submitted twenty-two examples of domestic decisions, including nineteen in which different prisons had been ordered to guarantee prisoners 4 sq. m of living space, and three in which prisons had been required to take particular action: repairing furniture in an applicant ’ s cell, repainting bathroom walls and complying with hygiene standards. With regard to the compensatory remedy, the Government submitted that a liability claim in tort as provided for by the Civil Code ( see paragraph 36 above ) could be brought by applicants wishing to seek redress for damage resulting from material conditions breaching Article 3 of the Convention. In that connection, they submitted a copy of a domestic decision in which the authorities had been ordered to pay compensation to a prisoner on account of the inappropriate medical treatment and diet he had received during his detention. Two other decisions had ordered Jilava Prison to pay compensation to two prisoners for their lack of access to hot water for two months and four months. A final example of a domestic decision concerned an award of compensation to a prisoner who had been forced to share a police cell with two smokers and who had not had permanent access to a toilet. 97. The Government submitted that the aims of the general measures set out above had been to reduce the number of prisoners, to encourage non-custodial sanctions, to increase capacity at detention facilities and to improve detention conditions. Furthermore, about 100 applications registered by the Court in 2015 had resulted in a friendly settlement. The Government were conscious, however, that there were still gaps to be filled before the existing system complied with Convention standards on detention conditions. The authorities had made efforts to tackle overcrowding, and were continuing and stepping up their modernisation and investment plans. A new memorandum, adopted on 1 9 January 2016, had stressed the need to consolidate the probation system ( in particular by increasing the number of probation officers), improve detention conditions and develop alternative measures. Accordingly, an investment plan involving a total of EUR 838. 45 million, to be shared between the ANP, the National Probation Service and the Ministry of the Interior, had been envisaged for 2016-2023. By the end of 2023, 10, 895 new places for detainees would be created, 1, 651 places would be modernised and 5, 847 staff would be recruited by the ANP. By 2018, 626 probation officers and 171 administrative assistants would be recruited to the National Probation Service. Between 2018 and 2020, 1, 769 new places for detainees would be created in police detention facilities. For all the above reasons, the Government contended that it was not appropriate to apply the pilot-judgment procedure. 2. The applicants 98. The first applicant appreciated the Romanian Government ’ s intention to improve detention conditions in prisons and police facilities. Nevertheless, he submitted that he had suffered, and was still suffering, the adverse effects of detention in conditions breaching Article 3 of the Convention, and he urged the Court to decide on his application as soon as possible. 99. The second applicant submitted that the plans produced by the Government to improve detention conditions made no reference to compensation for damage sustained by detainees. He asked the Court to decide on his application and to award him the amounts claimed under Article 4 1 of the Convention. 100. The third applicant contended that the adoption of a pilot judgment would be the most appropriate way of seeking to resolve the structural problem of poor detention conditions in Romania. He submitted that specific obligations should be imposed on the authorities and their fulfilment should be monitored by the Committee of Ministers. In that connection he cited the pilot judgment in Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, 10 January 2012). With regard to overcrowding, he referred to the statistics published by the ANP indicating that in October 2015 the prison occupancy rate in Romania had been 150. 68%, with a prison population of 28, 383 detainees occupying 18, 336 places. The ANP had also noted that in some prisons, detainees were obliged to share beds, for example in Ploiești Prison, which the Association for the Defence of Human Rights in Romania – Helsinki Committee ( APADOR-CH ) had visited in 2012, finding that there were twenty-four beds between thirty-one detainees. The situation was similar in police detention facilities ( he cited the case of the facilities in Iași, which APADOR-CH had visited in 2014, finding that three detainees were sharing a cell measuring 6. 21 sq. m). With regard to material conditions of detention, the third applicant referred to the Court ’ s findings concerning the lack of hygiene, inadequate number and poor working order of toilets and sinks, limited access to showers, presence of cockroaches, rats and lice, worn-out mattresses and bed linen and poor- quality food ( he referred to Iacov Stanciu, cited above, § 175). Reports on more recent visits by APADOR - CH confirmed the presence of cockroaches and mould, the failure at certain prisons to ensure that the toilets complied with hygiene standards, and the lack of toilets in police detention facilities. With regard to access to health care, the third applicant stated that the acute shortage of medical staff in prisons was confirmed by official statistics published by the ANP ( out of the 1 ,147 posts that had been approved, only 730 were occupied ). This, in his submission, resulted in a very heavy workload for prison doctors and a lowering of the quality of medical treatment. In addition, there were insufficient funds, a factor that had a direct influence on the medical treatment provided to prisoners. Lastly, the third applicant asked the Court not to suspend the processing of similar cases pending before it, in order to avoid exacerbating the damage sustained by victims. 101. The fourth applicant submitted that the observations produced by the Government did not concern any of the aspects of the poor material conditions of his detention in the Baia Mare police detention facilities, and that he wished to maintain his application. B. The Court ’ s assessment 1. General principles 102. The Court reiterates that Article 4 6 of the Convention, as interpreted in the light of Article 1, imposes on the respondent States a legal obligation to apply, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the applicant ’ s rights which the Court has found to be violated. Such measures must also be taken as regards other persons in the applicant ’ s position, notably by solving the problems that have led to the Court ’ s findings of a violation (see, among other authorities, Rutkowski and Others v. Poland, nos. 72287/10 and others, § 200, 7 July 2015; Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 78, ECHR 2014; Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/ 09, 35315/10 and 37818/10, § 83, 8 January 2013; and Broniowski v. Poland [GC], no. 31443/96, §§ 192-93, ECHR 2004-V, and the references cited therein). 103. In order to facilitate effective implementation of its judgments, the Court may adopt a pilot-judgment procedure allowing it to clearly identify structural problems underlying the breaches and to indicate measures to be applied by the respondent States to remedy them (see Resolution Res(2004)3 on judgments revealing an underlying systemic problem, adopted by the Committee of Ministers on 12 May 2004, and Broniowski, cited above, §§ 189-94). This adjudicative approach is, however, pursued with due respect for the Convention institutions ’ respective functions: it falls to the Committee of Ministers to evaluate the implementation of individual and general measures under Article 46 § 2 of the Convention ( see Rutkowski and Others, cited above, § 201, and the references cited therein ). 104. Another important aim of the pilot-judgment procedure is to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at the domestic level, thus implementing the principle of subsidiarity which underpins the Convention system. Indeed, the Court ’ s task as defined by Article 1 9, namely to “ ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto ”, is not necessarily best achieved by repeating the same findings in large series of cases (see Rutkowski and Others, cited above, § 202, and Varga and Others v. Hungary (nos. 14097/12 et al., § 96, 10 March 2015). 105. The object of the pilot-judgment procedure is to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of the Convention rights in question in the national legal order. While the respondent State ’ s action should primarily aim at the resolution of such a dysfunction and at the introduction, where appropriate, of effective domestic remedies in respect of the violations in question, it may also include ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements (see Rutkowski and Others, cited above, § 202; Varga and Others, cited above, § 97; and Torreggiani and Others, cited above, § 86). The Court may decide to adjourn the examination of similar cases, thus giving the respondent States a chance to settle them in such various ways. If, however, the respondent State fails to adopt such measures following a pilot judgment and continues to violate the Convention, the Court will have no choice but to resume the examination of all similar applications pending before it and to take them to judgment in order to ensure effective observance of the Convention (see Ališić and Others, cited above, § 143). 2. Application of these principles in the present case ( a) Whether the situation in the present case is incompatible with the Convention and requires the application of the pilot-judgment procedure 106. The Court notes that the first findings of a violation of Article 3 of the Convention on account of inadequate detention conditions in certain prisons in Romania date back to 2007 and 2008 ( see Bragadireanu v. Romania, no. 22088/04, 6 December 2007, and Petrea v. Romania, no. 4792/03, 29 April 2008 ) and that, since the adoption of the judgments in question, there have been increasing numbers of such findings. Between 2007 and 2012 there were ninety-three judgments finding a violation. Most of these cases, like the present ones, concerned overcrowding and various other recurrent aspects linked to material conditions of detention (lack of hygiene, insufficient ventilation and lighting, sanitary facilities not in working order, insufficient or inadequate food, restricted access to showers, presence of rats, cockroaches and lice, and so on). 107. Having regard to the significant inflow of cases concerning the same subject, the Court found it necessary in 2012 to issue guidance to the Romanian authorities under Article 4 6 of the Convention. The existence and extent of the structural problem identified by the Court in Iacov Stanciu ( cited above ) justified the indication of general measures to improve the material conditions in Romanian prisons, in combination with an adequate and effective system of domestic preventive and compensatory remedies, in order to achieve full compliance with Articles 3 and 46 of the Convention ( see Iacov Stanciu, cited above, §§ 195-99). 108. At the same time, the Committee of Ministers has twice assessed the general measures adopted by the Romanian authorities in response to the Court ’ s findings, and its conclusions only served to confirm the worrying state of affairs in the vast majority of Romanian police detention facilities and prisons, which continued to be beset by severe overcrowding and precarious material conditions. The Committee of Ministers found that additional measures were needed in order to set up an adequate and effective system of remedies ( see paragraph 47 above ). The reality of the situation is also confirmed by the latest CPT reports, emphasising the significance of the problem of overcrowding in Romanian custodial facilities. The same reports note that police detention facilities are inappropriate for prolonged periods of detention as they are generally overcrowded, have no direct access to a toilet and are poorly ventilated and unhygienic. The CPT has also found that overcrowding is a persistent problem in Romanian prisons, at some of which it has noted a lack of hygiene, insufficient lighting and ventilation, sanitary facilities not in working order, inadequate food and insufficient sociocultural activities ( see paragraphs 52 - 54 above ). All these findings are also borne out by the recommendations of the People ’ s Advocate, who, after visiting certain prisons, called on the prison authorities to put an end to overcrowding, poor hygiene conditions, the lack of a canteen, the presence of rats, mice and bedbugs and the lack of partitions for toilets, and also urged them to provide drinking water and sufficient furniture and to allow access to working showers ( see paragraphs 39-40 above ). 109. More than four years after identifying the structural problem, the Court is now examining the present cases, having already found a violation of Article 3 of the Convention in 150 judgments on account of overcrowding and inadequate material conditions in several Romanian prisons and police detention facilities. The number of findings of Convention violations on this account is constantly increasing. The Court notes that as of August 2016, 3, 200 similar applications were pending before it and that these could give rise to further judgments finding violations of the Convention. The continuing existence of major structural deficiencies causing repeated violations of the Convention is not only an aggravating factor as regards the State ’ s responsibility under the Convention for a past or present situation, but is also a threat for the future effectiveness of the supervisory system put in place by the Convention (see, mutatis mutandis, Broniowski, cited above, § 193). 110. The Court notes that the applicants ’ situation cannot be detached from the general problem originating in a structural dysfunction specific to the Romanian prison system, which has affected large numbers of people and is likely to continue to do so in future. Despite the legislative, administrative and budgetary measures taken at domestic level, the structural nature of the problem identified in 2012 still persists and the situation observed thus constitutes a practice that is incompatible with the Convention ( see, mutatis mutandis, Torreggiani and Others, cited above, § 88). 111. Having regard to that state of affairs, the Court considers that the present cases are suitable for the pilot-judgment procedure ( see, mutatis mutandis, Varga and Others, cited above, § 100; Neshkov and Others v. Bulgaria, nos. 36925/10 et al., § 271, 27 January 2015; Torreggiani and Others, cited above, § 90; and Ananyev and Others, cited above, § 190). (b) General measures 112. The Court reiterates that its judgments are essentially declaratory in nature and that in principle it is for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in order to discharge its legal obligation under Article 4 6 of the Convention (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). However, this does not prevent the Court from suggesting, purely by way of indication, the type of measures that the Romanian State could take in order to put an end to the structural problem found in the present case ( see, mutatis mutandis, Ananyev and Others, cited above, § 195). 113. It observes that the Romanian State has recently taken measures that may help to reduce overcrowding and its consequences in Romanian prisons. It welcomes the steps taken by the national authorities and can only encourage the Romanian State to continue this work. Nevertheless, it has to be observed that despite these efforts, the occupancy rate in Romanian prisons remains very high, a situation that confirms the findings of the People ’ s Advocate, the Committee of Ministers and the CPT ( see paragraphs 39-40, 46 and 54 above ). 114. In the Court ’ s view, two types of general measures should be implemented to remedy the systemic problem observed in this judgment. ( i ) Measures to reduce overcrowding and improve the material conditions of detention 115. As is indicated by the official data published by the ANP, the occupancy rate for all Romanian prisons ranges from 149. 11% to 154. 36% ( see paragraph 37 above ). In this connection, it should be noted that the majority of the more recent judgments have concerned applicants who had a living space of less than 3 sq. m, or even, in some cases, less than 2 sq. m. while serving their sentences. The Court reiterates that where a State is unable to guarantee that each prisoner is detained in conditions compatible with Article 3 of the Convention, the Court encourages it to take action with a view to reducing the prison population, for example by making greater use of non-custodial punitive measures (see Norbert Sikorski, cited above, § 158) and minimising recourse to pre-trial detention ( see, among other authorities, Varga and Others, cited above, § 104; Ananyev and Others, cited above, § 197; and Orchowski v. Poland, no. 17885/04, § 150, 22 October 2009). 116. Admittedly, it is not for the Court to indicate how States are to organise their criminal-law and penal systems, since these processes raise complex legal and practical issues going beyond the Court ’ s judicial function ( see Torreggiani and Others, cited above, § 95). Nevertheless, the Court would refer to the recommendations issued by the CPT, the assessments made by the Committee of Ministers and the recommendations set out in the White Paper on Prison Overcrowding, which identify a number of possible solutions to tackle overcrowding and inadequate material conditions of detention ( see, respectively, paragraphs 49 and 54, 42 and 46, and 57 above ). 117. With regard to pre-trial detention, the Court notes firstly that the cells at police stations have been found by the CPT and the Committee of Ministers to be “structurally unsuitable” for detention beyond a few days ( see paragraphs 44, 46, 52 and 54 above ). The Court also notes that it has already found that these facilities are intended to house detainees for only very short periods ( see, for example, Horshill v. Greece, no. 70427/11, §§ 43-53, 1 August 2013; Chkhartishvili v. Greece, no. 22910/10, §§ 52-64, 2 May 2013; and Bygylashvili v. Greece, no. 58164/10, §§ 55-62, 25 September 2012). In view of these findings, the domestic authorities should ensure that any pre-trial detainees are transferred to a prison at the end of their time in police custody. The Court notes that the reform implemented by the Government has resulted in some reduction in the number of pre-trial detainees ( see paragraph 92 above ). It welcomes the steps taken and encourages the Romanian State both to ensure that this reform is pursued and also to explore the possibility of facilitating more widespread use of alternatives to pre-trial detention ( see paragraphs 42 and 92 above ). 118. With regard to post-conviction detention, the Court notes with interest the reform initiated by the Government, which focuses in particular on the reduction of the maximum sentences for certain offences, the imposition of fines as an alternative to imprisonment, discharge and suspension of sentences, and the positive effects of the probation system ( see paragraph 92 above ). Although this reform has not had a significant effect on overcrowding levels, which remain fairly high ( see paragraph 37 above ), such measures, coupled with a more diverse range of alternatives to imprisonment ( see paragraphs 46 and 57 above ), could have a positive impact in reducing the prison population. Other possible options, such as relaxing the conditions for waiving the imposition of a sentence, suspending sentences ( see paragraph 32 above ), and above all expanding the possibility of access to parole ( see paragraphs 31 and 42 above ) and ensuring the effective operation of the probation service ( see paragraph 97 above ), could be sources of inspiration for the respondent Government with a view to resolving the problem of the growing prison population and inadequate material conditions of detention. 119. The Court further notes that the Government ’ s new strategy also envisages investment to create additional detention capacity ( see paragraphs 94 and 97 above ). Although this initiative highlights the authorities ’ desire to find a solution to the problem of prison overcrowding, the Court would draw attention to Recommendation Rec(99)22 of the Committee of Ministers, according to which such a measure is generally unlikely to offer a lasting solution to this problem ( see paragraph 42 above ). Furthermore, bearing in mind the precarious physical conditions and poor state of hygiene in Romanian prisons, funds should also continue to be set aside for renovation work at existing detention facilities. 120. The Court leaves it to the respondent State, subject to supervision by the Committee of Ministers, to take the practical steps it deems appropriate to achieve the aims pursued by the above indications in a manner compatible with the conclusions set out in this judgment. (ii) Remedies 121. As to the domestic remedy or remedies to be adopted in order to tackle the systemic problem identified in the present case, the Court reiterates that where conditions of detention are concerned, the “ preventive ” and “ compensatory ” remedies have to be complementary. Thus, where an applicant is held in conditions that are in breach of Article 3 of the Convention, the best possible form of redress is to put a rapid end to the violation of the right not to be subjected to inhuman and degrading treatment. Furthermore, anyone who has been detained in conditions undermining his or her dignity must be able to obtain redress for the violation that has occurred ( see Ananyev and Others, cited above, §§ 97-98 and 210-31, and Benediktov v. Russia, no. 106/02, § 29, 10 May 2007). 122. As the Court has already held in the Iacov Stanciu judgment ( cited above, §§ 197- 98), the respondent State must put in place a preventive remedy allowing post-sentencing judges and the courts to put an end to situations found to breach Article 3 of the Convention and to award compensation if such findings are made. 123. Concerning preventive remedies, the Court notes with interest that the examples provided by the Government ( see paragraph 96 above ) show that the domestic courts have examined situations of overcrowding following complaints by prisoners, and it acknowledges the substantial ongoing efforts by the authorities to ensure compliance with the domestic standards regarding living space for each detainee. The Court acknowledges this significant recent development in the domestic courts ’ case-law, but nevertheless observes that it is difficult to envisage a genuine prospect for detainees to obtain redress for their situation following a decision in their favour unless there is a general improvement in the conditions of detention in Romanian prisons, as described in paragraphs 106 and 108 above. 124. With regard to compensatory remedies, the Court notes with satisfaction that certain courts have examined the various aspects relating to material conditions of detention and have awarded compensation to detainees on that account ( see paragraph 96 above ). However, it notes that in Romanian law, the system of liability in tort is based on personal liability and therefore requires fault on the part of the person who caused the damage ( see paragraph 36 above ). The Court would emphasise that in the case of poor detention conditions, the burden of proof, which rests with the individual, must not be excessive. Moreover, it reiterates that substandard conditions of detention are not necessarily due to problems within the prison administration as such, but usually have more complex causes, such as problems in penal policy ( see Iacov Stanciu, cited above, § 199). Even where it provides for the possibility of compensation, a remedy may not offer reasonable prospects of success, for example if the award is conditional on the establishment of fault on the part of the authorities ( see Ananyev and Others, cited above, § 113; Roman Karasev v. Russia, no. 30251/03, §§ 81 ‑ 85, 25 November 2010; and Shilbergs v. Russia, no. 20075/03, §§ 71 ‑ 79, 17 December 2009). Accordingly, the examples provided by the Government do not demonstrate with the requisite degree of certainty that there is an effective compensatory remedy in this regard. 125. The Court encourages the Romanian State to introduce a specific compensatory remedy allowing appropriate compensation to be awarded for any violation of the Convention that has already been found on account of inadequate living space and/or precarious material conditions. In this context, the Court notes with interest the legislative initiative concerning the remission of sentences ( see paragraph 41 above ), which may afford appropriate redress in respect of poor conditions of detention, provided that, firstly, such a remission is explicitly granted to redress the violation of Article 3 of the Convention and, secondly, it has a measurable impact on the sentence served by the person concerned ( see Stella and Others v. Italy (dec.), nos. 49169/09 et al., §§ 59 - 60, 16 September 2014). Lastly, the Court notes that a compensatory remedy was recently implemented by the Hungarian authorities in the wake of the Varga and Others judgment ( cited above ). 126. In this connection, having regard to the importance and urgency of the problem identified and the fundamental nature of the rights in question, the Court considers that a reasonable deadline must be set for the implementation of the general measures. However, it finds that it is not for the Court to set such a deadline at this stage and that the Committee of Ministers is better placed to do so. That being so, the Court concludes that within six months from the date on which this judgment becomes final the Romanian Government must provide, in cooperation with the Committee of Ministers, a precise timetable for the implementation of the appropriate general measures. (c) Procedure to be followed in similar cases 127. The Court reiterates that in the pilot judgment it may decide on the procedure to be followed in the examination of all similar cases ( see also, mutatis mutandis, Torreggiani and Others, cited above, § 100; Xenides-Arestis v. Turkey, no. 46347/99, § 50, 22 December 2005; and Broniowski, cited above, § 198). 128. The Court decides that pending the adoption by the domestic authorities, subject to supervision by the Committee of Ministers, of the necessary measures at national level, it will adjourn the examination of any applications of which the Government have not yet been given notice where the sole or main complaint concerns overcrowding and poor detention conditions in prisons and police cells in Romania. It points out that it may nevertheless decide at any moment to declare any such case inadmissible or to strike it out in the event of a friendly settlement between the parties or the resolution of the matter by other means, in accordance with Articles 37 or 39 of the Convention. However, the Court may continue its examination of applications of which notice has already been given to the respondent Government ( see, mutatis mutandis, Torreggiani and Others, cited above, § 101). ... | Polgar v. Romania |
653 | Opposition activists | THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 18. The applicant complained that the judgments in the defamation claim and an excessive award against him had violated his right to freedom of expression under Article 10 of the Convention which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Submissions by the parties 19. The Government submitted that the Russian courts had held the phrase “Moscow courts are controlled by Luzhkov” to be a statement of fact. It had been “undoubtedly damaging” for the mayor ’ s reputation, as under the Constitution, Russian judges were independent and submitted only to the Constitution and federal law. The applicant ’ s allegation had been a serious accusation against the Moscow mayor that he had exercised pressure on the Moscow courts. It could be understood as accusing him of criminal offences under Articles 285 (abuse of office), 286 (excess of powers) or 294 (interference with the justice) of the Criminal Code. The Anti-Corruption Act also established responsibility for corruption-related offences which could be sanctioned in particular with a ban on holding public office. The Government concluded that the applicant had “alleged, in essence, that the mayor was unfit for his position and was a criminal”. Those allegations had not been founded on verified or verifiable information and had been capable of causing actual damage to the mayor ’ s professional activities, undermining his professional integrity or qualification in the eyes of the public. As to the proportionality of the award, the courts had been guided by the relevant provisions of the Civil Code and had regard to the fact that the statement had undermined public trust in the authorities, that it had been broadcast to an unlimited audience of the radio station and published on the web-site and that the mayor had suffered extraordinary anguish in that connection. In the Government ’ s opinion, the amount of the award had not exceeded the average in that category of defamation claims. The objective of making that award had been “to prevent individuals who make public statements about facts, from drawing ill-considered and unsubstantiated conclusions”. 20. The applicant pointed out that the Government had been unable to produce a single judicial decision finding against Mayor Luzhkov. His phrase had not accused him of any offence; it had been a conclusion at which an ordinary citizen would have arrived upon reviewing the findings of Moscow courts on the claims lodged by Mayor Luzhkov. The phrase had been his personal opinion which was not actionable in defamation. He had sought to attract public attention to the existing case-law and to the way in which the courts functioned in Moscow. The amount of award had been grossly disproportionate in relation to both the nature of the statement and the existing case-law, as well as in relation to his financial situation as a father of two minor children, and his political status as one of the leaders of the opposition movement. An excessively large award had the stifling effect on the criticism of public authorities in Russia and on the activities of the opposition movement. Admissibility 21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 22. The Court accepts that the finding of the applicant ’ s liability for defamation and an order to pay damages to the mayor constituted interference with his right to freedom of expression. The interference had a lawful basis, notably Article 152 of the Civil Code, which allowed an aggrieved party to seek the judicial protection of his reputation and claim compensation in respect of non-pecuniary damages. It also pursued a legitimate aim, that of protecting the reputation or rights of others, within the meaning of Article 10 § 2. It remains to be established whether the interference was “necessary in a democratic society”. In reviewing under Article 10 the domestic courts ’ decisions, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Dichand and Others v. Austria, no. 29271/95, § 38, 26 February 2002, with further references). The Court will take the following elements into account: the position of the applicant, the position of the person against whom his criticism was directed, the context and object of the impugned statement, its characterisation by the domestic courts, and the sanction imposed (see Krasulya v. Russia, no. 12365/03, § 35, 22 February 2007, with further references). 23. At the material time the applicant was one of the leaders of a broad coalition of opposition groups which sought to vindicate the right to freedom of assembly in Moscow by holding rallies and demonstrations known as Dissenters ’ Marches ( see Kasparov and Others v. Russia, no. 21613/07, § 7 et seq., 3 October 2013). The city authorities denied permission for the Dissenters ’ March on 16 December 2006 and the organisers unsuccessfully challenged that decision in courts. During a live radio debate in which the Moscow court ’ s decision to uphold the ban on the Dissenters ’ March was discussed the applicant stated his view that the Moscow courts were controlled by the Moscow mayor. 24. The statement was made in the general context of a discussion about restrictions which the Moscow authorities imposed on the citizens ’ right to freedom of peaceful assembly. More specifically, the applicant ’ s statement could be understood as a suggestion that the regional judiciary showed excessive deference to the executive or even lacked the requisite degree of independence. Both the exercise of political rights and the functioning of the justice system constitute matters of public interest, which are accorded the high level of protection under Article 10, leaving the State authorities a particularly narrow margin of appreciation for suppressing such speech (see Morice v. France [GC], no. 29369/10, § 125, ECHR 2015 ). 25. Although the statement appeared to have targeted the insufficiently independent standing of the Moscow judiciary, it was the Moscow mayor who took issue with it and sued the applicant for defamation. The mayor was a professional politician and the elected head of the city government. The Court reiterates that the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. The requirements of the protection of a politician ’ s reputation have to be weighed against the interests of open discussion of political issues (see Oberschlick v. Austria (no. 1), 23 May 1991, § 59, Series A no. 204) but the domestic courts did not perform any such balancing exercise in the instant case. 26. As regards the form and contents of the statement, the Court notes that it was the applicant ’ s reaction in the context of an oral exchange during a live radio broadcast, so that he had no possibility of reformulating, refining or retracting it before it was made public (compare Fuentes Bobo v. Spain, no. 39293/98, § 46, 29 February 2000, and Ottan v. France, no. 41841/12, § 69, 19 April 2018 ). Such forms of expression allow for a greater degree of exaggeration and cannot be held to the same standard of accuracy as written assertions (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 73, ECHR 2011). The statement conveyed the applicant ’ s indignation at what he perceived as yet another rejection of lawful demands against the Moscow government. It reflected his own experience of unsuccessful attempts to vindicate the right to freedom of peaceful assembly in Moscow, but also on the experience of others who had lost judicial proceedings involving the Moscow mayor. The Court considers that those elements, taken together with the Government ’ s factual information showing that the courts had not found against the Moscow mayor in any of the defamation claims (see paragraph 16 above), were sufficient to lend a certain factual basis to the applicant ’ s strong reaction. The Court accordingly finds that the applicant was entitled to state his opinion in a public forum on a matter of public interest. The District and City Courts in Moscow did not carry out a balancing exercise or take into account the Moscow mayor ’ s position as a professional politician. Those failings call for the conclusion that the standrds according to which the national authorities examined the defamation claim against the applicant were not in conformity with the principles embodied in Article 10. 27. In addition to the above finding, the Court will separately address the applicant ’ s argument about an excessive award of damages in favour of the Moscow mayor. It reiterates that unpredictably large awards in defamation cases are considered capable of having a chilling effect on the freedom of expression and therefore require the most careful scrutiny (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999 ‑ III, and Kasabova v. Bulgaria, no. 22385/03, § 71, 19 April 2011 ). An award of damages must be “necessary in a democratic society” in the sense that it must bear a reasonable relationship of proportionality to the injury to reputation suffered. It falls to the Court to assess whether the compensatory response to a defamation claim was a proportionate one by finding where the appropriate balance lies between the conflicting Convention rights involved. Accordingly, the essential question to be answered is whether, having regard to the size of the award, there were adequate and effective domestic safeguards, at first instance and on appeal, against disproportionate awards which assured a reasonable relationship of proportionality between the award and the injury to reputation (see Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, no. 55120/00, §§ 110-113, ECHR 2005 ‑ V (extracts), and Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 48-51, Series A no. 316 ‑ B). 28. The Moscow mayor was awarded the full amount he had claimed in respect of non-pecuniary damage, RUB 500,000 from each of the two defendants which came to a total of approximately EUR 28 ,000 at the material time. The Court reiterates that awards of that magnitude will trigger a heightened scrutiny of their proportionality (see Pakdemirli v. Turkey, no. 35839/97, § 59, 22 February 2005, and Gouveia Gomes Fernandes and Freitas e Costa v. Portugal, no. 1529/08, § 54, 29 March 2011 ). That award was unusually high in absolute terms but also much higher in relation to awards in comparable defamation cases that have come before the Court (see, for example, Grinberg v. Russia, no. 234 72/03, § 12, 21 July 2005 – RUB 2,500 to the Governor of the Ulyanovsk Region out of the RUB 500,000 he had claimed; Fedchenko v. Russia, no. 33333/04, § 15, 11 February 2010 – RUB 5,000 to a member of Parliament out of the RUB 500,000 he had claimed; Novaya Gazeta and Borodyanskiy v. Russia, no. 14087/08, § 15, 28 March 2013 – RUB 60,000 to the Governor of Omsk out of the RUB 500,000 he had claimed ). The Government were able to identify only five cases over a ten-year period in which comparable or higher awards had been made. By contrast, in the three-year period from 2007 to 2010, the Moscow mayor was granted the full amount he had claimed in at least two other cases (see paragraphs 16 and 17 above). 29. The Court further notes that, when making the pecuniary award against the applicant, the District Court failed to provide any reasons to justify the granting of the full amount sought by the Moscow mayor or to carry out a serious assessment of proportionality (compare Kwiecień v. Poland, no. 51744/99, § 56, 9 January 2007). It held the applicant responsible for the failure to produce his statement of income but did not adjourn the proceedings to obtain documents relating to his financial situation. In any event, even though the other defendant, the radio station, did submit a statement of accounts, that did not prevent the District Court from making an award exceeding the amount of available funds by a factor of ten. 30. The Court also disagrees with the City Court ’ s assessment that the suffering of the elected head of the executive had a much greater value than that of an ordinary citizen. This finding is incompatible with the Convention-compliant approach which establishes that prominent political figures, such as the Moscow mayor, should be prepared to accept strongly worded criticism and may not claim the same level of protection as a private individual unknown to the public, especially when the statement did not concern their private life or intrude on their intimacy (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 84 and 123, ECHR 2015 (extracts) ). In these circumstances, the Court finds that a high award of damages to the Moscow mayor did not pursue a “pressing social need” (compare I Avgi Publishing and Press Agency S.A. and Karis v. Greece, no. 15909/06, § 35, 5 June 2008). 31. Finally, as regards the impact of such an award on the applicant, the evidence shows that he struggled to pay it in full because it represented his many years ’ income ( compare Kasabova, cited above, § 71, and Tešić v. Serbia, nos. 4678/07 and 50591/12, § 65, 11 February 2014 ). The courts denied his request to pay by instalments which resulted in a further punitive sanction being imposed on him in the form of a permanent restriction on his right to leave Russia. The severity of that additional sanction which must have considerably disrupted the applicant ’ s life further reinforces the Court ’ s view that the award of damages in the present case was disproportionate to the legitimate aim pursued and not “necessary in a democratic society”. 32. Having regard to the Moscow courts ’ failure to apply the principles embodied in Article 10 of the Convention and the excessive amount of the award, the Court finds a violation of that provision. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 33. The applicant also complained under Article 6 of the Convention that the domestic courts had misrepresented the statements by the expert in linguistics and had not carried out an adequate assessment of the damage caused to the mayor which had resulted in an excessive award. 34. Having regard to the facts of the case and its finding of a violation of Article 10, the Court considers that it has examined the main legal question raised in the present application. It therefore concludes that it is not necessary to examine the admissibility or merits of the above-mentioned complaints (see, for example, Pakdemirli, cited above, § 63, and Mustafa Erdoğan and Others v. Turkey, nos. 346/04 and 39779/04, § 48, 2 7 May 2014 ). APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 36. The applicant claimed, in respect of pecuniary damage, the amount payable under the impugned judgment, which was equivalent to 11,700 euros (EUR) on the date of submission of claims, and an additional amount of EUR 91,900, comprising the following elements: EUR 36,000 for renting a substitute flat as he had been asked to leave the old one after the search; EUR 43,000 for the value of property he should have inherited after his parents in Ukraine but had not been able to take possession of because of the restriction on leaving Russia, and EUR 12,900 for the loss of income from publications which had ceased working with him fearing reprisals. He also claimed EUR 50,000 in respect of non-pecuniary damage. 37. The Government submitted that the applicant had only paid a tiny fraction of the total award, that his rental contact or employment situation had in no way been connected with his application to the Court and that he was still able to claim his inheritance in Ukraine. The claim in respect of non-pecuniary damage was excessive and not corroborated with any evidence of the applicant ’ s distress. 38. The Court observes that the judicial award against the applicant has remained enforceable under domestic law and that the applicant ’ s freedom of movement has been restricted on the grounds that it has not been paid in full. In these circumstances, it awards the applicant the full amount payable under the domestic judgment, which it found to have been in breach of the Convention requirements, plus any tax that may be chargeable. 39. The Court finds no indication that the Russian authorities put pressure on either the applicant ’ s former landlord or the magazine publishers to end their relationship with him. The applicant was not prevented from having a Russian notary public certify his signature on the application for inheritance or from hiring a Ukrainian lawyer to represent him before the competent authorities. In these circumstances, the remainder of the applicant ’ s claim in respect of pecuniary damage must be rejected. 40. In the Court ’ s view, the applicant suffered non-pecuniary damage as a result of the domestic courts ’ judgments which were incompatible with the Convention requirements. Making its assessment on an equitable basis, the Court awards the applicant EUR 7, 8 00 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. 41. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding in particular that the Russian courts had found against the applicant without taking account of the fact that his comments had been made in the course of a debate on matters of public interest and that politicians had to accept a high level of criticism. In fact, the domestic courts had ruled that the mayor deserved more protection than ordinary citizens. The Court also found that the amount of the defamation award, 500,000 Russian roubles (about 14,000 euros), had been excessive. |
882 | Erasure or destruction of personal data | II. RELEVANT DOMESTIC LAW A. The Constitution 26. The relevant provisions of the Constitution read as follows: Article 20 “(1) The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party. (2) In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.” Article 21 “(1) Anyone may apply to the courts for protection of his rights, liberties and legitimate interests. (2) The exercise of this right shall not be restricted by any statute.” B. The Civil Code 27. The relevant provisions of the Civil Code are worded as follows: Article 3 “A judge who refuses to adjudicate, on the pretext that the law is silent, obscure or defective, may be prosecuted on a charge of denial of justice.” Article 998 “Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” Article 999 “Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.” C. The Code of Civil Procedure 28. The relevant provision of the Code of Civil Procedure reads as follows: Article 322-5 “An application may be made for review of a final decision ... where written evidence which has been withheld by the opposing party or which it was not possible to submit for a reason beyond the parties' control is discovered after the decision has been delivered ...” D. Decree no. 31 of 1954 on natural and legal persons 29. The relevant provisions of Decree no. 31 of 1954 on natural and legal persons are worded as follows: Article 54 “(1) Anyone whose right ... to honour, reputation ... or any other non-economic right has been infringed may apply to the courts for an injunction prohibiting the act which is infringing the aforementioned rights. (2) Similarly, anyone who has been the victim of such an infringement of rights may ask the courts to order the person responsible for the unlawful act to carry out any measure regarded as necessary by the court in order to restore his rights.” Article 55 “If a person responsible for unlawful acts does not within the time allowed by the court perform what he has been enjoined to do in order to restore the right infringed, the court may sentence him to pay a periodic pecuniary penalty to the State ...” E. Legislative Decree no. 118 of 30 March 1990 on the granting of certain rights to persons who were persecuted on political grounds by the dictatorial regime established on 6 March 1945 30. At the material time, the relevant provisions of Legislative Decree no. 118/1990 read: Article 1 “The following periods shall be taken into account in determining seniority and shall count as such for the purpose of calculating retirement pension and any other rights derived from seniority: periods during which a person, after 6 March 1945, for political reasons – (a) served a custodial sentence imposed in a final judicial decision or was detained pending trial for political offences; ...” Article 5 “A committee composed of a chairman and at most six other members shall be set up in each county ... in order to verify whether the requirements laid down in Article 1 have been satisfied ... The chairman must be legally qualified. The committee shall include two representatives from the employment and social-welfare departments and a maximum of four representatives from the association of former political detainees and victims of the dictatorship. ...” Article 6 “The persons concerned may establish that they satisfy the conditions laid down in Article 1 by means of official documents issued by the relevant authorities or ... of any other material of evidential value. ...” Article 11 “The provisions of this decree shall not be applicable to persons who have been convicted of crimes against humanity or to those in respect of whom it has been established, by means of the procedure indicated in Articles 5 and 6, that they engaged in Fascist activities within a Fascist-type organisation.” F. Law no. 14 of 24 February 1992 on the organisation and operation of the Romanian Intelligence Service 31. The relevant provisions of Law no. 14 of 24 February 1992 on the organisation and operation of the Romanian Intelligence Service, which was published in the Official Gazette on 3 March 1992, read as follows: Section 2 “The Romanian Intelligence Service shall organise and carry out all activities designed to gather, verify and utilise the information needed for discovering, preventing and frustrating any actions which, in the eyes of the law, threaten Romania's national security.” Section 8 “The Romanian Intelligence Service shall be authorised to hold and to make use of any appropriate resources in order to secure, verify, classify and store information affecting national security, as provided by law.” Section 45 “All internal documents of the Romanian Intelligence Service shall be secret, shall be kept in its own archives and may be consulted only with the consent of the Director as provided in law. Documents, data and information belonging to the Romanian Intelligence Service shall not be made public until forty years after they have been archived. The Romanian Intelligence Service shall, in order to keep and make use of them, take over all the national-security archives that belonged to the former intelligence services operating on Romanian territory. The national-security archives of the former Securitate shall not be made public until forty years after the date of the passing of this Act.” G. Law no. 187 of 20 October 1999 on citizens' access to the personal files held on them by the Securitate, enacted with the intention of unmasking that organisation's nature as a political police force 32. The relevant provisions of Law no. 187 of 20 October 1999, which came into force on 9 December 1999, are worded as follows: Section 1 “(1) All Romanian citizens, and all aliens who have obtained Romanian nationality since 1945, shall be entitled to inspect the files kept on them by the organs of the Securitate ... This right shall be exercisable on request and shall make it possible for the file itself to be inspected and copies to be made of any document in it or relating to its contents. (2) Additionally, any person who is the subject of a file from which it appears that he or she was kept under surveillance by the Securitate shall be entitled, on request, to know the identity of the Securitate agents and collaborators who contributed documents to the file. (3) Unless otherwise provided by law, the rights provided in subsections (1) and (2) shall be available to the surviving spouses and relatives up to the second degree inclusive of a deceased.” Section 2 “(1) In order to provide for a right of access to information of public interest, all Romanian citizens ..., the media, political parties ... shall be entitled to be informed ... if any of the persons occupying the following posts or seeking to do so have been agents or collaborators of the Securitate : (a) the President of Romania; (b) member of Parliament or of the Senate; ...” Section 7 “A National Council for the Study of the Archives of the Securitate ... (hereinafter 'the Council'), with its headquarters in Bucharest, shall be set up to apply the provisions of this Act. The Council shall be an autonomous body with legal personality, subject to supervision by Parliament. ...” Section 8 “The Council shall consist of a college of eleven members. The members of the college of the Council shall be appointed by Parliament, on a proposal by the parliamentary groups, according to the political composition of the two Chambers ... for a term of office of six years, renewable once.” Section 13 “(1) The beneficiaries of this Act may, in accordance with section 1(1), request the Council – (a) to allow them to consult the files ... compiled by the Securitate up to 22 December 1989; (b) to issue copies of ... these files ...; (c) to issue certificates of membership or non-membership of the Securitate and of collaboration or non-collaboration with it; ...” Section 14 “(1) The content of certificates under section 13(1)(c) may be challenged before the college of the Council ...” Section 15 “(1) The right of access to information of public interest shall be exercisable by means of a request sent to the Council. ... ... (4) In response to requests made under section 1, the Council shall verify the evidence at its disposal, of whatever form, and shall immediately issue a certificate ...” Section 16 “(1) Any beneficiary or person in respect of whom a check has been requested may challenge before the college of the Council a certificate issued under section 15. ... The college's decision may be challenged ... in the Court of Appeal ...” THE LAW I. the government's preliminary objections A. Applicant's victim status 33. As their primary submission, the Government maintained – as they had done before the Commission – that the applicant could no longer claim to be the “victim” of a violation of the Convention within the meaning of Article 34. They pointed out that the applicant had won his case in the Bucharest Court of Appeal, since that court had, in its judgment of 25 November 1997, declared null and void the details contained in the letter of 19 December 1990 from the Romanian Intelligence Service ( Serviciul Român de Informaţii – “the RIS”), and, in the Government's view, the only infringement of the applicant's rights stemmed from that letter. At all events, the Government continued, the applicant now had available to him the procedure put in place by Law no. 187 of 20 October 1999, which afforded him all the safeguards required by the Convention for the protection of his rights. 34. The applicant requested the Court to continue its consideration of the case. He argued that the circumstances that had given rise to the application had not fundamentally changed following the decision of 25 November 1997. Firstly, the mere fact of acknowledging, after the Commission's admissibility decision, that a mistake had been made could not amount to adequate redress for the violations of the Convention. Secondly, he had still not had access to his secret file, which was not only stored by the RIS but also used by it. It was consequently not to be excluded that even after the decision of 25 November 1997 the RIS might make use of the information that the applicant had supposedly been a legionnaire and of any other information in his file. 35. The Court reiterates, as to the concept of victim, that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp. 18-19, § 34). Furthermore, “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a 'victim' unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see the Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). 36. In the instant case the Court notes that the applicant complained of the holding of a secret register containing information about him, whose existence was publicly revealed during judicial proceedings. It considers that he may on that account claim to be the victim of a violation of the Convention. The Court also notes that in a judgment of 25 November 1997 the Bucharest Court of Appeal found that the details given in the letter of 19 December 1990 about the alleged fact that the applicant had been a legionnaire were false, in that they probably related to someone else with the same name, and declared them null and void. Assuming that it may be considered that that judgment did, to some extent, afford the applicant redress for the existence in his file of information that proved false, the Court takes the view that such redress is only partial and that at all events it is insufficient under the case-law to deprive him of his status of victim. Apart from the foregoing considerations as to his being a victim as a result of the holding of a secret file, the Court points to the following factors in particular. The information that the applicant had supposedly been a legionnaire is apparently still recorded in the RIS's files and no mention of the judgment of 25 November 1997 has been made in the file concerned. Furthermore, the Court of Appeal expressed no view – and was not entitled to do so – on the fact that the RIS was authorised by Romanian legislation to hold and make use of files opened by the former intelligence services, which contained information about the applicant. A key complaint made to the Court by the applicant was that domestic law did not lay down with sufficient precision the manner in which the RIS must carry out its work and that it did not provide citizens with an effective remedy before a national authority. Lastly, the Bucharest Court of Appeal in its judgment of 25 November 1997 did not rule on the applicant's claim for compensation for non ‑ pecuniary damage and for costs and expenses. 37. As to Law no. 187 of 20 October 1999, which the Government relied on, the Court considers, having regard to the circumstances of this case, that it is not relevant (see paragraph 71 below). 38. The Court concludes that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention. The objection must therefore be dismissed. B. Exhaustion of domestic remedies 39. The Government also submitted that the application was inadmissible for failure to exhaust domestic remedies. They argued that the applicant had had a remedy which he had not made use of, namely an action based on Decree no. 31/1954 on natural and legal persons, under which the court may order any measure to restrain injury to a person's reputation. 40. The Court notes that there is a close connection between the Government's argument on this point and the merits of the complaints made by the applicant under Article 13 of the Convention. It accordingly joins this objection to the merits (see paragraph 70 below). ii. alleged violation of article 8 of the convention 41. The applicant complained that the RIS held and could at any moment make use of information about his private life, some of which was false and defamatory. He alleged a violation of Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Applicability of Article 8 42. The Government denied that Article 8 was applicable, arguing that the information in the RIS's letter of 19 December 1990 related not to the applicant's private life but to his public life. By deciding to engage in political activities and have pamphlets published, the applicant had implicitly waived his right to the “anonymity” inherent in private life. As to his questioning by the police and his criminal record, they were public information. 43. The Court reiterates that the storing of information relating to an individual's private life in a secret register and the release of such information come within the scope of Article 8 § 1 (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, § 48). Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings: furthermore, there is no reason of principle to justify excluding activities of a professional or business nature from the notion of “private life” (see the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29, and the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, pp. 1015-16, §§ 42-46). The Court has already emphasised the correspondence of this broad interpretation with that of the Council of Europe's Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which came into force on 1 October 1985 and whose purpose is “to secure ... for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined in Article 2 as “any information relating to an identified or identifiable individual” (see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II). Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person's distant past. 44. In the instant case the Court notes that the RIS's letter of 19 December 1990 contained various pieces of information about the applicant's life, in particular his studies, his political activities and his criminal record, some of which had been gathered more than fifty years earlier. In the Court's opinion, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of “private life” for the purposes of Article 8 § 1 of the Convention. That is all the more so in the instant case as some of the information has been declared false and is likely to injure the applicant's reputation. Article 8 consequently applies. B. Compliance with Article 8 1. Whether there was interference 45. In the Government's submission, three conditions had to be satisfied before there could be said to be interference with the right to respect for private life: information had to have been stored about the person concerned; use had to have been made of it; and it had to be impossible for the person concerned to refute it. In the instant case, however, both the storing and the use of the information relating to the applicant had occurred before Romania ratified the Convention. As to the alleged impossibility of refuting the information, the Government maintained that, on the contrary, it was open to the applicant to refute untrue information but that he had not made use of the appropriate remedies. 46. The Court points out that both the storing by a public authority of information relating to an individual's private life and the use of it and the refusal to allow an opportunity for it to be refuted amount to interference with the right to respect for private life secured in Article 8 § 1 of the Convention (see the following judgments : Leander cited above, p. 22, § 48; Kopp v. Switzerland, 25 March 1998, Reports 1998-II, p. 540, § 53; and Amann cited above, §§ 69 and 80). In the instant case it is clear beyond peradventure from the RIS's letter of 19 December 1990 that the RIS held information about the applicant's private life. While that letter admittedly predates the Convention's entry into force in respect of Romania on 20 June 1994, the Government did not submit that the RIS had ceased to hold information about the applicant's private life after that date. The Court also notes that use was made of some of the information after that date, for example in connection with the application for review which led to the decision of 25 November 1997. Both the storing of that information and the use of it, which were coupled with a refusal to allow the applicant an opportunity to refute it, amounted to interference with his right to respect for his private life as guaranteed by Article 8 § 1. 2. Justification for the interference 47. The cardinal issue that arises is whether the interference so found is justifiable under paragraph 2 of Article 8. That paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be interpreted narrowly. While the Court recognises that intelligence services may legitimately exist in a democratic society, it reiterates that powers of secret surveillance of citizens are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions (see the Klass and Others judgment cited above, p. 21, § 42). 48. If it is not to contravene Article 8, such interference must have been “in accordance with the law”, pursue a legitimate aim under paragraph 2 and, furthermore, be necessary in a democratic society in order to achieve that aim. 49. The Government considered that the measures in question were in accordance with the law. The information concerned had been disclosed by the RIS in connection with a procedure provided in Legislative Decree no. 118/1990, which was designed to afford redress to persons persecuted by the communist regime. By the terms of Article 11 of that legislative decree, no measure of redress could be granted to persons who had engaged in Fascist activities. 50. In the applicant's submission, the keeping and use of the file on him were not in accordance with the law, since domestic law was not sufficiently precise to indicate to citizens in what circumstances and on what terms the public authorities were empowered to file information on their private life and make use of it. Furthermore, domestic law did not define with sufficient precision the manner of exercise of those powers and did not contain any safeguards against abuses. 51. The Commission considered that domestic law did not define with sufficient precision the circumstances in which the RIS could archive, release and use information relating to the applicant's private life. 52. The Court reiterates its settled case-law, according to which the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see, as the most recent authority, Amann cited above, § 50). 53. In the instant case the Court notes that Article 6 of Legislative Decree no. 118/1990, which the Government relied on as the basis for the impugned measure, allows any individual to prove that he satisfies the requirements for having certain rights conferred on him, by means of official documents issued by the relevant authorities or any other material of evidential value. However, the provision does not lay down the manner in which such evidence may be obtained and does not confer on the RIS any power to gather, store or release information about a person's private life. The Court must therefore determine whether Law no. 14/1992 on the organisation and operation of the RIS, which was likewise relied on by the Government, can provide the legal basis for these measures. In this connection, it notes that the law in question authorises the RIS to gather, store and make use of information affecting national security. The Court has doubts as to the relevance to national security of the information held on the applicant. Nevertheless, it reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see the Kopp judgment cited above, p. 541, § 59) and notes that in its judgment of 25 November 1997 the Bucharest Court of Appeal confirmed that it was lawful for the RIS to hold this information as depositary of the archives of the former security services. That being so, the Court may conclude that the storing of information about the applicant's private life had a basis in Romanian law. 54. As to the accessibility of the law, the Court regards that requirement as having been satisfied, seeing that Law no. 14/1992 was published in Romania's Official Gazette on 3 March 1992. 55. As regards the requirement of foreseeability, the Court reiterates that a rule is “foreseeable” if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct. The Court has stressed the importance of this concept with regard to secret surveillance in the following terms (see the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 32, § 67, reiterated in Amann cited above, § 56): “The Court would reiterate its opinion that the phrase 'in accordance with the law' does not merely refer back to domestic law but also relates to the quality of the 'law', requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention ... The phrase thus implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 ... Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident ... ... Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.” 56. The “quality” of the legal rules relied on in this case must therefore be scrutinised, with a view, in particular, to ascertaining whether domestic law laid down with sufficient precision the circumstances in which the RIS could store and make use of information relating to the applicant's private life. 57. The Court notes in this connection that section 8 of Law no. 14/1992 provides that information affecting national security may be gathered, recorded and archived in secret files. No provision of domestic law, however, lays down any limits on the exercise of those powers. Thus, for instance, the aforesaid Law does not define the kind of information that may be recorded, the categories of people against whom surveillance measures such as gathering and keeping information may be taken, the circumstances in which such measures may be taken or the procedure to be followed. Similarly, the Law does not lay down limits on the age of information held or the length of time for which it may be kept. Section 45 of the Law empowers the RIS to take over for storage and use the archives that belonged to the former intelligence services operating on Romanian territory and allows inspection of RIS documents with the Director's consent. The Court notes that this section contains no explicit, detailed provision concerning the persons authorised to consult the files, the nature of the files, the procedure to be followed or the use that may be made of the information thus obtained. 58. It also notes that although section 2 of the Law empowers the relevant authorities to permit interferences necessary to prevent and counteract threats to national security, the ground allowing such interferences is not laid down with sufficient precision. 59. The Court must also be satisfied that there exist adequate and effective safeguards against abuse, since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it (see the Klass and Others judgment cited above, pp. 23-24, §§ 49-50). In order for systems of secret surveillance to be compatible with Article 8 of the Convention, they must contain safeguards established by law which apply to the supervision of the relevant services' activities. Supervision procedures must follow the values of a democratic society as faithfully as possible, in particular the rule of law, which is expressly referred to in the Preamble to the Convention. The rule of law implies, inter alia, that interference by the executive authorities with an individual's rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure (see the Klass and Others judgment cited above, pp. 25-26, § 55). 60. In the instant case the Court notes that the Romanian system for gathering and archiving information does not provide such safeguards, no supervision procedure being provided by Law no. 14/1992, whether while the measure ordered is in force or afterwards. 61. That being so, the Court considers that domestic law does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. 62. The Court concludes that the holding and use by the RIS of information on the applicant's private life were not “in accordance with the law”, a fact that suffices to constitute a violation of Article 8. Furthermore, in the instant case that fact prevents the Court from reviewing the legitimacy of the aim pursued by the measures ordered and determining whether they were – assuming the aim to have been legitimate – “necessary in a democratic society”. 63. There has consequently been a violation of Article 8. iii. alleged violation of article 13 of the convention 64. The applicant complained that the lack of any remedy before a national authority that could rule on his application for destruction of the file containing information about him and amendment of the inaccurate information was also contrary to Article 13, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 65. The Government argued that the applicant had obtained satisfaction through the judgment of 25 November 1997, in which the details contained in the RIS's letter of 19 December 1990 had been declared null and void. As to the destruction or amendment of information in the file held by the RIS, the Government considered that the applicant had not chosen the appropriate remedy. He could have brought an action on the basis of Decree no. 31 of 1954, Article 54 § 2 of which empowered the court to order any measure to restore the right infringed, in the instant case the applicant's right to his honour and reputation. The Government further pointed out that the applicant could now rely on the provisions of Law no. 187 of 1999 to inspect the file opened on him by the Securitate. Under sections 15 and 16 of that Law, the applicant could challenge in court the truth of the information in his file. 66. In the Commission's opinion, the Government had not managed to show that there was in Romanian law a remedy that was effective in practice as well as in law and would have enabled the applicant to complain of a violation of Article 8 of the Convention. 67. The Court reiterates that it has consistently interpreted Article 13 as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999-IV). Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. This Article therefore requires the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligation under this provision. The remedy must be “effective” in practice as well as in law (see Wille v. Liechtenstein [GC], no. 28396/95, § 75, ECHR 1999-VII). 68. The Court observes that the applicant's complaint that the RIS held information about his private life for archiving and for use, contrary to Article 8 of the Convention, was indisputably an “arguable” one. He was therefore entitled to an effective domestic remedy within the meaning of Article 13 of the Convention. 69. The “authority” referred to in Article 13 may not necessarily in all instances be a judicial authority in the strict sense. Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective (see the Klass and Others judgment cited above, p. 30, § 67). Furthermore, where secret surveillance is concerned, objective supervisory machinery may be sufficient as long as the measures remain secret. It is only once the measures have been divulged that legal remedies must become available to the individual (ibid., p. 31, §§ 70-71). 70. In the instant case the Government maintained that the applicant could have brought an action on the basis of Article 54 of Decree no. 31/1954. In the Court's view, that submission cannot be accepted. Firstly, it notes that Article 54 of the decree provides for a general action in the courts, designed to protect non-pecuniary rights that have been unlawfully infringed. The Bucharest Court of Appeal, however, indicated in its judgment of 25 November 1997 that the RIS was empowered by domestic law to hold information on the applicant that came from the files of the former intelligence services. Secondly, the Government did not establish the existence of any domestic decision that had set a precedent in the matter. It has therefore not been shown that such a remedy would have been effective. That being so, this preliminary objection by the Government must be dismissed. 71. As to the machinery provided in Law no. 187/1999, assuming that the Council provided for is set up, the Court notes that neither the provisions relied on by the respondent Government nor any other provisions of that Law make it possible to challenge the holding, by agents of the State, of information on a person's private life or the truth of such information. The supervisory machinery established by sections 15 and 16 relate only to the disclosure of information about the identity of some of the Securitate 's collaborators and agents. 72. The Court has not been informed of any other provision of Romanian law that makes it possible to challenge the holding, by the intelligence services, of information on the applicant's private life or to refute the truth of such information. 73. The Court consequently concludes that the applicant has been the victim of a violation of Article 13. iv. alleged violation of article 6 of the convention 74. The applicant complained that the courts' refusal to consider his applications for costs and damages infringed his right to a court, contrary to Article 6 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal ...” 75. The Government made no submission. 76. The Commission decided to consider the complaint under the more general obligation, imposed on the States by Article 13, of affording an effective remedy enabling complaints to be made of violations of the Convention. 77. The Court observes that apart from the complaint, examined above, that there was no remedy whereby an application could be made for amendment or destruction of the file containing information about him, the applicant also complained that the Bucharest Court of Appeal, although lawfully seised of a claim for damages and costs, did not rule on the matter in its review judgment of 25 November 1997. 78. There is no doubting that the applicant's claim for compensation for non-pecuniary damage and costs was a civil one within the meaning of Article 6 § 1, and the Bucharest Court of Appeal had jurisdiction to deal with it (see the Robins v. the United Kingdom judgment of 23 September 1997, Reports 1997-V, p. 1809, § 29). The Court accordingly considers that the Court of Appeal's failure to consider the claim infringed the applicant's right to a fair hearing within the meaning of Article 6 § 1 (see the Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, pp. 12-13, § 30). 79. There has therefore been a violation of Article 6 § 1 of the Convention also. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. The applicant sought just satisfaction under Article 41 of the Convention, which provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 81. The applicant claimed 20,000,000,000 Romanian lei (ROL) in compensation for non-pecuniary damage caused by the discredit associated with the public disclosure of false and defamatory information about him and with the authorities' refusal for several years to admit the mistake and correct it. 82. The Government objected to this claim, which they considered unreasonable, especially as the applicant had not raised the point in the domestic courts. 83. The Court draws attention to its settled case-law to the effect that the mere fact that an applicant has not brought his claim for damages before a domestic court does not require the Court to dismiss those claims as being ill-founded any more than it raises an obstacle to their admissibility (see the De Wilde, Ooms and Versyp v. Belgium judgment of 10 March 1972 ( Article 50 ), Series A no. 14, pp. 9-10, § 20). Furthermore, the Court notes in the instant case that, contrary to what the Government maintained, the applicant did seek compensation in the domestic courts for the non ‑ pecuniary damage he had sustained, in the form of payment of a token sum of 1 Romanian leu, a claim which was not addressed by the Romanian courts. It notes, further, that the Bucharest Court of Appeal declared the allegedly defamatory information null and void, thereby partly meeting the applicant's complaints. The Court considers, however, that the applicant must actually have sustained non-pecuniary damage, regard being had to the existence of a system of secret files contrary to Article 8, to the lack of any effective remedy, to the lack of a fair hearing and also to the fact that several years elapsed before a court held that it had jurisdiction to declare the defamatory information null and void. It therefore considers that the events in question entailed serious interference with Mr Rotaru's rights and that the sum of 50,000 French francs (FRF) will afford fair redress for the non-pecuniary damage sustained. That amount is to be converted into Romanian lei at the rate applicable at the date of settlement. B. Costs and expenses 84. The applicant sought reimbursement of ROL 38,000,000 (FRF 13,450) which he broke down as follows: (a) ROL 30,000,000 corresponding to costs incurred in the domestic proceedings, including ROL 20,000,000 for travel and subsistence in respect of visits to Iaşi and Bucharest and ROL 10,000,000 for sundry expenses (stamp duty, telephone calls, photocopying, etc.); (b) ROL 8,000,000 corresponding to expenses incurred before the Convention institutions, including ROL 6,000,000 for translation and secretarial expenses, ROL 1,000,000 for travel expenses between Bârlad and Bucharest and ROL 1,000,000 for a French visa for the applicant's son. 85. The Government considered that sum excessive, especially as the applicant had, they said, sought judgment in default in all the domestic proceedings. 86. The Court reiterates that in order for costs to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and reasonable as to quantum (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). In this connection, it should be remembered that the Court may award an applicant not only the costs and expenses incurred before the Strasbourg institutions, but also those incurred in the national courts for the prevention or redress of a violation of the Convention found by the Court (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 45, ECHR 1999-I). 87. The Court notes that the applicant was not represented in the domestic courts, that he presented his own case to the Commission and that in the proceedings before the Court he was represented at the hearing. It also notes that the Council of Europe paid Mr Rotaru the sum of FRF 9,759.72 by way of legal aid. The Court awards the full amount claimed by the applicant, that is to say FRF 13,450, less the sum already paid by the Council of Europe in legal aid. The balance is to be converted into Romanian lei at the rate applicable at the date of settlement. C. Default interest 88. The Court considers it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment, that is to say 2.74% per annum. | The Court held that there had been a violation of Article 8 of the Convention, finding that the holding and use by the RIS of information about the applicant’s private life had not been in accordance with the law. The Court observed in particular that public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person’s distant past. It further noted that no provision of domestic law defined the kind of information that could be recorded, the categories of people against whom surveillance measures such as gathering and keeping information could be taken, the circumstances in which such measures could be taken or the procedure to be followed. Similarly, the law did not lay down limits on the age of information held or the length of time for which it could be kept. Lastly, there existed no explicit, detailed provision concerning the persons authorised to consult the files, the nature of the files, the procedure to be followed or the use that could be made of the information thus obtained. That being so, the Court considered that Romanian law did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. In this case there Court also held that there had been a violation of Article 13 (right to an effective remedy) of the Convention because it was impossible for the applicant to challenge the data storage or to refute the truth of the information in question. |
581 | Deportation of seriously ill persons | II. Relevant domestic law and practice 22. The regulation of entry into and stay in the United Kingdom is governed by Part 1 of the Immigration Act 1971. The practice to be followed in the administration of the Act for regulating entry and stay is contained in statements of the rules laid by the Secretary of State before Parliament ("the Immigration Rules"). 23. Section 3 (1) provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of the Act. Leave to enter may be granted for a limited or for an indefinite period. 24. Under section 4 (1) of the Act the power to grant or refuse leave to enter is exercised by immigration officers whereas the power to grant leave to remain in the United Kingdom is exercised by the Secretary of State. These powers are exercisable by notice in writing given to the person affected. 25. A person, such as the applicant, who has been refused leave to enter but is physically in the United Kingdom pending his removal and seeks to be allowed to stay there does not fall to be treated as applying for leave to remain. Since no leave to enter had been granted to the applicant, it was right according to the judgment of Sir Iain Glidewell in R. v. Secretary of State for the Home Department, ex parte D. (Court of Appeal, 15 February 1996) for the immigration officer to treat his application as an application for leave to enter rather than for leave to remain. A. Policy guidelines on how to proceed in cases in which persons seeking to enter or remain in the United Kingdom are suffering from AIDS or are HIV-positive 26. The Immigration and Nationality Department of the Home Office issued a policy document (BDI 3/95) on this subject in August 1995. Paragraph 2 of the guidelines specifies that the fact that a person is suffering from AIDS or is HIV-positive is not a ground for refusing leave to enter or leave to remain if the person concerned otherwise qualifies under the Immigration Rules. Equally, this fact is not in itself a sufficient ground to justify the exercise of discretion where the person concerned has not met the requirements of the Rules. The policy guidelines distinguish between applications for leave to enter and applications for leave to remain. 27. On applications for leave to enter (paragraph 4 of the guidelines), where the person is suffering from AIDS, the policy and practice is to adhere to the provisions of the Immigration Rules in the normal way. Where such a person does not qualify under the Rules, entry is refused. 28. On applications for leave to remain (paragraph 5 of the guidelines), the application should be dealt with normally on its merits under the applicable Rules. However, there is a discretion outside the Rules which can be exercised in strong compassionate circumstances. Paragraph 5.4 states that: "... there may be cases where it is apparent that there are no facilities for treatment available in the applicant ’ s own country. Where evidence suggests that this absence of treatment significantly shortens the life expectancy of the applicant it will normally be appropriate to grant leave to remain." B. Other relevant materials 29. Among the documentary materials submitted by the applicant, are the following. 1. International policy statements on human rights and AIDS 30. International concern about AIDS has resulted in the adoption of several international texts which have addressed, inter alia, the protection of the human rights of the victims of the disease. Thus, the United Nations Commission on Human Rights adopted a resolution on 9 March 1993 on the protection of human rights in the context of human immunodeficiency virus or acquired immunodeficiency syndrome in which it called upon "all States to ensure that their laws, policies and practices introduced in the context of AIDS respect human rights standards". 31. At a Summit of Heads of Government or Representatives of forty-two States meeting in Paris on 1 December 1994, a declaration was adopted in which the participating States solemnly declared their obligation "to act with compassion for and in solidarity with those with HIV or at risk of becoming infected, both within [their] societies and internationally". 2. Extract of the WHO report on "Health conditions in the Americas ", 1994, Volume II, concerning St Kitts and Nevis 32. "Health and living conditions ... there are a number of serious environmental problems, such as inadequate disposal of solid and liquid waste - especially untreated sewage - into coastal lands and waters, resulting in coastal zone degradation, fish depletion and health problems (gastro ‑ enteritis) ..." 33. According to this publication, there are two general hospitals in St Kitts, one with 174 beds and the other with 38. There is also a "cottage" hospital with 10 beds. There are two homes providing geriatric care. 3. "Treatment issues - a basic guide to medical treatment options for people with HIV and AIDS" produced in April 1996 by the Terrence Higgins Trust 34. This guide describes the three medical strategies available for treating HIV infection and AIDS: using anti-HIV drugs which attack HIV itself to delay or prevent damage to the immune system, treating or preventing opportunistic infections which take advantage of damage to the immune system and strengthening and restoring the immune system. Amongst the first category, several drugs can be used, including AZT (also known as Zidovudine or its tradename Retrovir ). This belongs to a family of drugs called nucleoside analogues which inhibit an enzyme produced by HIV called reverse transcriptase (RT). If RT is inhibited, HIV cannot infect new cells and the build-up of virus in the body is slowed down. However, the existing drugs are only partially effective and at best can only delay the worsening of HIV-related disease rather than prevent it. 35. As regards the second category, persons whose immune systems have been significantly damaged are vulnerable to a range of infections and tumours known as opportunistic infections. These commonly include cytomegalovirus (herpes virus), Kaposi ’ s sarcoma, anaemia, tuberculosis, toxoplasmosis and PCP. PCP is a form of pneumonia which in people infected with HIV may affect the lymph nodes, bone marrow, spleen and liver as well as the lungs. Steps to avoid such infections include taking care with food and drink and prophylactic treatment by drugs. In the case of PCP, which was a common cause of death during the first years of the epidemic and is still one of the commonest AIDS illnesses, options include the long-term taking of antibiotics such as cotrimoxazole and the use of nebulised pentamidine which is intended to protect the lungs. 36. In relation to the third category, treatment which strengthens or restores the immune system, research has yet to produce any clear results. PROCEEDINGS BEFORE THE COMMISSION 37. The applicant lodged his application (no. 30240/96) with the Commission on 15 February 1996. He alleged that his proposed removal to St Kitts would be in violation of Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8) and that he had been denied an effective remedy to challenge the removal order in breach of Article 13 (art. 13). The Commission declared the application admissible on 26 June 1996. In its report of 15 October 1996 (Article 31) (art. 31), it expressed the opinion that Article 3 (art. 3) would be violated if the applicant were to be removed to St Kitts (eleven votes to seven); that it was unnecessary to examine the complaint under Article 2 (art. 2) (unanimously); that no separate issue arose under Article 8 (art. 8) (unanimously); and that there had been no violation of Article 13 (art. 13) (thirteen votes to five). The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3] FINAL SUBMISSIONS TO THE COURT 38. In their memorial and at the oral hearing the Government requested the Court to decide and declare that the facts disclose no breach of the applicant ’ s rights under Articles 2, 3, 8 or 13 of the Convention (art. 2, art. 3, art. 8, art. 13). The applicant requested the Court in his memorial and at the oral hearing to find that his proposed removal from the United Kingdom would, if implemented, constitute a breach of Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8) and that he had no effective remedy in respect of those complaints in breach of Article 13 (art. 13). AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3) 39. The applicant maintained that his removal to St Kitts would expose him to inhuman and degrading treatment in breach of Article 3 of the Convention (art. 3), which provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." A. Arguments of those appearing before the Court 1. The applicant 40. The applicant maintained that his removal to St Kitts would condemn him to spend his remaining days in pain and suffering in conditions of isolation, squalor and destitution. He had no close relatives or friends in St Kitts to attend to him as he approached death. He had no accommodation, no financial resources and no access to any means of social support. It was an established fact that the withdrawal of his current medical treatment would hasten his death on account of the unavailability of similar treatment in St Kitts. His already weakened immune system would not be able to resist the many opportunistic infections to which he would be exposed on account of his homelessness, lack of proper diet and the poor sanitation on the island. The hospital facilities were extremely limited and certainly not capable of arresting the development of infections provoked by the harsh physical environment in which he would be obliged to fend for himself. His death would thus not only be further accelerated, it would also come about in conditions which would be inhuman and degrading. 41. In June 1996, his life expectancy was stated to be in the region of eight to twelve months even if he continued to receive treatment in the United Kingdom. His health had declined since then. As he was now clearly weak and close to death, his removal by the respondent State at this late stage would certainly exacerbate his fate. 2. The Government 42. The Government requested the Court to find that the applicant had no valid claim under Article 3 (art. 3) in the circumstances of the case since he would not be exposed in the receiving country to any form of treatment which breached the standards of Article 3 (art. 3). His hardship and reduced life expectancy would stem from his terminal and incurable illness coupled with the deficiencies in the health and social-welfare system of a poor, developing country. He would find himself in the same situation as other AIDS victims in St Kitts. In fact he would have been returned in January 1993 to St Kitts, where he had spent most of his life, had it not been for his prosecution and conviction. 43. The Government also disputed the applicant ’ s claim that he would be left alone and without access to treatment for his condition. They maintained that he had at least one cousin living in St Kitts and that there were hospitals caring for AIDS patients, including those suffering from opportunistic infections (see paragraph 17 above). Even if the treatment and medication fell short of that currently administered to the applicant in the United Kingdom, this in itself did not amount to a breach of Article 3 standards (art. 3). 44. Before the Court the Government observed that it was their policy not to remove a person who was unfit to travel. They gave an undertaking to the Court not to remove the applicant unless, in the light of an assessment of his medical condition after the Court gives judgment, he is fit to travel. 3. The Commission 45. The Commission concluded that the removal of the applicant to St Kitts would engage the responsibility of the respondent State under Article 3 (art. 3) even though the risk of being subjected to inhuman and degrading treatment stemmed from factors for which the authorities in that country could not be held responsible. The risk was substantiated and real. If returned, he would be deprived of his current medical treatment and his already weakened immune system would be exposed to untreatable opportunistic infections which would reduce further his limited life expectancy and cause him severe pain and mental suffering. He would be homeless and without any form of moral, social or family support in the final stages of his deadly illness. B. The Court ’ s assessment 46. The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes the gravity of the offence which was committed by the applicant and is acutely aware of the problems confronting Contracting States in their efforts to combat the harm caused to their societies through the supply of drugs from abroad. The administration of severe sanctions to persons involved in drug trafficking, including expulsion of alien drug couriers like the applicant, is a justified response to this scourge. 47. However, in exercising their right to expel such aliens Contracting States must have regard to Article 3 of the Convention (art. 3), which enshrines one of the fundamental values of democratic societies. It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Article 3 (art. 3) prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question (see, most recently, the Ahmed v. Austria judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2206, para. 38; and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1853, paras. 73-74). 48. The Court observes that the above principle is applicable to the applicant ’ s removal under the Immigration Act 1971. Regardless of whether or not he ever entered the United Kingdom in the technical sense (see paragraph 25 above) it is to be noted that he has been physically present there and thus within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention (art. 1) since 21 January 1993. It is for the respondent State therefore to secure to the applicant the rights guaranteed under Article 3 (art. 3) irrespective of the gravity of the offence which he committed. 49. It is true that this principle has so far been applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or from those of non-State bodies in that country when the authorities there are unable to afford him appropriate protection (see, for example, the Ahmed judgment, loc. cit., p. 2207, para. 44). Aside from these situations and given the fundamental importance of Article 3 (art. 3) in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article (art. 3) in other contexts which might arise. It is not therefore prevented from scrutinising an applicant ’ s claim under Article 3 (art. 3) where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article (art. 3). To limit the application of Article 3 (art. 3) in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant ’ s personal situation in the expelling State. 50. Against this background the Court will determine whether there is a real risk that the applicant ’ s removal would be contrary to the standards of Article 3 (art. 3) in view of his present medical condition. In so doing the Court will assess the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on his state of health (see the Ahmed judgment, loc. cit., p. 2207, para. 43). 51. The Court notes that the applicant is in the advanced stages of a terminal and incurable illness. At the date of the hearing, it was observed that there had been a marked decline in his condition and he had to be transferred to a hospital. His condition was giving rise to concern (see paragraph 21 above). The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation. He has been counselled on how to approach death and has formed bonds with his carers (see paragraph 19 above). 52. The abrupt withdrawal of these facilities will entail the most dramatic consequences for him. It is not disputed that his removal will hasten his death. There is a serious danger that the conditions of adversity which await him in St Kitts will further reduce his already limited life expectancy and subject him to acute mental and physical suffering. Any medical treatment which he might hope to receive there could not contend with the infections which he may possibly contract on account of his lack of shelter and of a proper diet as well as exposure to the health and sanitation problems which beset the population of St Kitts (see paragraph 32 above). While he may have a cousin in St Kitts (see paragraph 18 above), no evidence has been adduced to show whether this person would be willing or in a position to attend to the needs of a terminally ill man. There is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island which, according to the Government, care for AIDS patients (see paragraph 17 above). 53. In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant ’ s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3 (art. 3). The Court also notes in this respect that the respondent State has assumed responsibility for treating the applicant ’ s condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3 (art. 3), his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment. Without calling into question the good faith of the undertaking given to the Court by the Government (see paragraph 44 above), it is to be noted that the above considerations must be seen as wider in scope than the question whether or not the applicant is fit to travel back to St Kitts. 54. Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3 (art. 3). II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION (art. 2) 55. The applicant further maintained that the implementation by the United Kingdom authorities of the decision to remove him to St Kitts would be in breach of Article 2 of the Convention (art. 2), which provides: "1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article (art. 2) when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection." 56. The applicant contended that his removal to St Kitts would engage the responsibility of the respondent State under Article 2 (art. 2). He is terminally ill, and the medical evidence submitted to the Court (see paragraphs 14-15 and 20-21 above) confirmed that his already reduced life expectancy would be further shortened if he were to be suddenly deprived of his current medical treatment and sent back to St Kitts. There would, he argued, be a direct causal link between his expulsion and his accelerated death such as to give rise to a violation of the right to life. He submitted that Article 2 (art. 2) denoted a positive obligation to safeguard life which in the circumstances in issue required the Government not to take a measure which would further reduce his limited life expectancy. 57. The Government did not dispute the fact that the removal of the applicant to St Kitts and the consequential loss of the current medical treatment would hasten his death. However, the threat to his life expectancy stemmed not from factors for which the Government could be held responsible but from his own fatal illness in conjunction with the lack of adequate medical treatment in the receiving country. Article 2 (art. 2) was therefore not applicable to the circumstances in issue. In any event the substance of the applicant ’ s complaints could not be separated from the arguments he advanced in furtherance of his allegation under Article 3 (art. 3) and for that reason were best dealt with under the latter provision (art. 3). 58. The Commission did not find it necessary to decide whether the risk to the applicant ’ s life expectancy created by his removal disclosed a breach of Article 2 (art. 2). It considered that it would be more appropriate to deal globally with this allegation when examining his related complaints under Article 3 (art. 3). 59. The Court for its part shares the views of the Government and the Commission that the complaints raised by the applicant under Article 2 (art. 2) are indissociable from the substance of his complaint under Article 3 (art. 3) in respect of the consequences of the impugned decision for his life, health and welfare. It notes in this respect that the applicant stated before the Court that he was content to base his case under Article 3 (art. 3). Having regard to its finding that the removal of the applicant to St Kitts would give rise to a violation of Article 3 (art. 3) (see paragraph 54 above), the Court considers that it is not necessary to examine his complaint under Article 2 (art. 2). III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8) 60. The applicant also alleged that his proposed removal to St Kitts would violate his right to respect for his private life, as guaranteed by Article 8 of the Convention (art. 8). Article 8 (art. 8) provides: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." 61. In support of this argument the applicant maintained that his removal would amount to a disproportionate interference with his right to respect for his private life, and in particular his right to respect for his physical integrity. While readily accepting that the offence he had committed was a very serious one, he requested the Court to consider the impact which his removal to St Kitts would entail for him, a terminally ill person with no family or close relatives in the receiving country, no moral or social support and no adequate medical treatment to stave off infection to his already weakened immune system. His continued presence in the United Kingdom could not be considered a burden on the domestic health resources and, furthermore, there were no indications that he would reoffend. 62. The Government maintained that the applicant could not rely on Article 8 (art. 8) to challenge the impact of the impugned decision on his right to private life since his private life was constituted in the receiving country where he had lived most of his life. Any links which the applicant had with the United Kingdom were the direct result of the offence for which he had been sentenced. Even if Article 8 (art. 8) were to be regarded as applicable, the interference with his medical interests by removing him to St Kitts was justified, given the seriousness of the offence he had committed, for reasons of the prevention of crime and in the interests of the economic well-being of the United Kingdom. 63. Although the Commission found that no separate issue arose under Article 8 (art. 8) in view of its findings under Article 3 (art. 3), the Delegate invited the Court to find a violation of Article 8 (art. 8) in the event of a conclusion that the applicant ’ s removal to St Kitts would not violate Article 3 (art. 3). 64. Having regard to its finding under Article 3 (art. 3) (see paragraph 54 above), the Court concludes that the applicant ’ s complaints under Article 8 (art. 8) raise no separate issue. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13) 65. The applicant complained that he had no effective remedy in English law in respect of his complaints under Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8). He contended that this gave rise to a breach of Article 13 of the Convention (art. 13), which provides: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 66. The applicant pointed to the limitations which circumscribed an effective review by courts in the United Kingdom of the decisions reached by the authorities in expulsion cases. When reviewing the legality of administrative decisions the courts did not treat the Convention and the principles developed by the Court as a relevant consideration; nor was the decision-maker obliged to take account of the Convention and the case-law of the Convention institutions when exercising the powers conferred by legislation such as the Immigration Act 1971. Admittedly, the domestic courts will review decisions with a greater rigour when they have an impact on human rights, but even in such cases they do not take a Convention ‑ based approach. Thus, in the case in issue, the Court of Appeal did not seek to satisfy itself whether the removal of the applicant would expose him to inhuman and degrading treatment but merely examined whether the decision-maker had taken this factor into account. This, he maintained, fell short of the test of "independent scrutiny" of a claim that there exist substantial grounds for fearing a real risk of treatment proscribed by Article 3 (art. 3) which the Court in its Chahal judgment (loc. cit., p. 1871, para. 151) had considered to be a crucial aspect of an effective remedy. Furthermore, the Court of Appeal had regarded the seriousness of the applicant ’ s offence as a paramount consideration in deciding that the impugned decision was not an irrational one and had failed also to take adequate account of the Convention ’ s requirements when dealing with his complaints under Articles 2 and 8 (art. 2, art. 8). For these reasons it could not be said that the judicial review proceedings afforded him an effective remedy within the meaning of Article 13 (art. 13). 67. The Government disputed this argument and invited the Court to confirm the conclusion which it had reached in certain earlier judgments that judicial review proceedings afforded an effective remedy to challenge the legality of a decision to expel or deport an individual. The courts in the United Kingdom applied a "most anxious scrutiny" test when reviewing administrative decisions which affect the fundamental rights of individuals. The Court of Appeal applied such a test in this case when assessing the merits of the decision to remove the applicant and took due account of the hardship which the implementation of the decision would cause the applicant. The applicant cannot therefore argue that he was denied an effective remedy. 68. The Commission agreed with the Government. The Court of Appeal examined the substance of the applicant ’ s complaint, including the hardship which would result from his removal. Although the Court of Appeal did not quash the decision to remove him, it had the power to do so. The remedy afforded by judicial review was therefore an effective one. 69. The Court observes that Article 13 of the Convention (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see, among other authorities, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 47, para. 120; and the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 39, para. 122). 70. In its Vilvarajah and Others judgment (loc. cit., p. 39, para. 123) and its Soering judgment (loc. cit., pp. 47-48, paras. 121-24) the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 (art. 3) in the contexts of deportation and extradition. It was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take. 71. While it is true that the source of the risk of the prohibited treatment to which the applicant will be exposed and the impugned measure are different from those in the above cases there is no reason to depart from the conclusion reached in those cases in respect of the effectiveness of judicial review proceedings for the purposes of Article 13 (art. 13). Indeed the Court of Appeal had regard to domestic case-law which required it to submit the applicant ’ s plight to the most anxious scrutiny on account of the established risk to his life expectancy. It did so against the background of the criteria which need to be satisfied before an administrative decision can be challenged on the grounds of its irrationality. The substance of the applicant ’ s complaint was therefore examined by the Court of Appeal. That court had the power to afford him the relief he sought. The fact that it did not do so is not a material consideration since the effectiveness of a remedy for the purposes of Article 13 (art. 13) does not depend on the certainty of a favourable outcome for an applicant (see the Vilvarajah and Others judgment, loc. cit., p. 39, para. 122). 72. The applicant maintained that the effectiveness of the remedy invoked first before the High Court and subsequently before the Court of Appeal was undermined on account of their failure to conduct an independent scrutiny of the facts in order to determine whether they disclosed a real risk that he would be exposed to inhuman and degrading treatment. He relied on the reasoning in the Chahal judgment (loc. cit., p. 1871, para. 151). However the Court notes that in that case the domestic courts were precluded from reviewing the factual basis underlying the national-security considerations invoked by the Home Secretary to justify the expulsion of Mr Chahal. No such considerations arise in the case in issue. 73. The applicant thus had available to him an effective remedy in relation to his complaints under Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8). Accordingly there has been no breach of Article 13 (art. 13). V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50) 74. Article 50 of the Convention (art. 50) provides: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Costs and expenses 75. The applicant did not seek damages. He claimed reimbursement of GBP 49,443 and 13,811 French francs (FRF) incurred by way of costs and expenses in respect of the proceedings brought before the Convention institutions. 76. The Government requested the Court to reduce the amount, mainly because the time billed in respect of the preparation of certain parts of the case was excessive and the number of lawyers engaged to work on the case unreasonable. They proposed the sum of GBP 29,313.16 and FRF 9,194. 77. The applicant defended the amount claimed on account of, inter alia, the complexity of the issues involved and the speed with which the case had been treated by both the Commission and the Court. 78. Making an assessment on an equitable basis, the Court awards the applicant GBP 35,000 plus any value-added tax that may be chargeable under this head, less the FRF 33,216 already paid in legal aid by the Council of Europe. B. Default interest 79. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum. | The Court emphasised that aliens who had served their prison sentences and were subject to expulsion could not, in principle, claim any entitlement to remain in the territory of a Convention State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison. However, the circumstances of the applicant’s case were rather exceptional. As his illness had been very advanced and he was dependent on the treatment he had been receiving, there was a serious danger that the adverse living conditions in St Kitts would reduce his life expectancy and subject him to acute suffering. His deportation would therefore be in breach of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. |
151 | Home birth | IV. RELEVANT DOMESTIC LAW A. The Constitution 20. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990 with subsequent amendments ) read as follows: Article 57 § 2 “ Rights concerning childbirth, motherhood and childcare shall be regulated by law.” Article 59 “Everyone has the right to healthcare in accordance with the law.” B. The Healthcare Act and corresponding bylaws 1. Healthcare Act 21. The Healthcare Act ( Zakon o zdravstvenoj zaštiti, Official Gazette nos. 150/2008, 155/2009, 71/2010, 139/2010, 22/2011, 84/2011 and 154/2011 ), as in force at the material time, provided that healthcare measures included, inter alia, ensuring the full healthcare of women, in particular in relation to family planning, pregnancy, childbirth and motherhood (section 17 ( 10 ) ). Healthcare measures were provided in accordance with a plan and programme drawn up by the Ministry of Health (section 18). 22. Healthcare services were to be provided by healthcare facilities, companies and private health professionals, under the conditions prescribed by law (section 35 ( 1 ) ). Exceptionally, healthcare services were also provided by other legal entities and physical persons in accordance with the law (section 35 ( 2 ) ). 23. The Act expressly regulated the private practice of health professionals such as doctors, dentists, dental technicians, pharmacists, nurses and physiotherapists (sections 146 and 147). It did not expressly regulate midwives in private practice. 24. As regards foreign health professionals in private practice, the law regulating the work of foreigners in Croatia was applicable. Foreign health professionals had to meet the same conditions as national health professionals in private practice, save for having Croatian citizenship. They also had to have relevant knowledge of the Croatian language ( section 145( 4) and 147(7)). 25. Private health professionals who performed in private practice without meeting the conditions provided by that Act and those who worked in private practice in an area which was banned by that Act, could have been punished for a misdemeanour and ordered to pay a fine of between 5,000 and 10,000 Croatian kunas (HRK) (sections 204 ( 2 ) and 204 ( 9 ) ). 26. The Act was subsequently amended several times (Official Gazette nos. 12/2012, 35/2012, 70/2012, 144/2012, 82/2013, 159/2 013, 22/2014, 154/2014, 70/2016 and 131/2017 ), but it still did not expressly regulate midwives in private practice. 2. Bylaw on minimum conditions for space, workers and medical equipment for providing healthcare services 27. The Bylaw on the minimum conditions for space, workers and medical equipment for providing healthcare services ( Pravilnik o minimalnim uvjetima u pogledu prostora, radnika i medicinsko-tehničke opreme za obavljanje zdravstvene djelatnosti, Official Gazette no. 61/2011– “the Bylaw on minimum conditions”), as in force at the material time, provided that the performing of midwifery services required an examination room measuring at least twelve square metres, a room for an assistant midwife of at least nine square metres, a waiting room measuring at least nine square metres, and toilet facilities for staff and patients. It also regulated which appliances were required for performing midwifery services and which members of staff had to be present during each eight ‑ hour shift (section 31). 3. Bylaw on the conditions, organisation and functioning of urgent outpatient medical assistance 28. The Bylaw on the conditions, organisation and functioning of emergency outpatient medical assistance ( Pravilnik o uvjetima, organizaciji i načinu rada izvanbolničke hitne medicinske pomoći, Official Gazette no. 146/2003 – “the Bylaw on emergency medical assistance”), as in force at the material time, regulated the measures and procedures to be followed in the event of an emergency at the place of the emergency, during transport in emergency medical assistance vehicles and on the premises of medical facilities (sections 2 and 3). The Bylaw provided that plans and programmes for the basic education of medical nurses and medical technicians working in urgent outpatient medical assistance had to include, inter alia, assisting with births outside a hospital, dealing with newborns and transporting mothers and newborns ( annex no. 3). C. Compulsory Health Insurance Act and Plan and program of the compulsory health insurance healthcare measures 1. Compulsory Health Insurance Act 29. The Compulsory Health Insurance Act ( Zakon o obveznom zdravstvenom osiguranju, Official Gazette nos. 150/2008, 94/2009, 153/2009, 71/2010, 139/2010 and 49/2011), as in force at the material time, provided that guaranteed healthcare was provided through health measures established on the basis of a corresponding plan and programme drawn up by the Ministry of Health (sections 15 ( 2 ) and 15 ( 3 ) ). Insured persons were entitled to obtain guaranteed healthcare at the expense of the Health Insurance Fund ( “ the Fund ” ) in healthcare facilities and from private healthcare professionals who had concluded an agreement with the Fund on providing healthcare services under the conditions prescribed by law (section 15( 4 ) ). Obtaining guaranteed healthcare services related to the monitoring of pregnancies and childbirth was paid for in its entirety by the Fund (section 16 ( 2 )( 3 ) ). 30. On 1 July 2013 a new Compulsory Health Insurance Act ( Zakon o obveznom zdravstvenom osiguranju, Official Gazette nos. 80/2013 and 137/2013) came into force. It still provides that guaranteed healthcare is provided through health measures established on the basis of a corresponding plan and programme drawn up by the Ministry of Health (sections 18(2) and 18 (3)). 2. The Plan and programme of healthcare measures under the compulsory health insurance system 31. The Plan and programme of healthcare measures under compulsory health insurance ( Plan i program mjera zdravstvene zaštite iz obveznog zdravstvenog osiguranja, Official Gazette nos. 126/2006 and 156/2008 – “the Plan and programme of healthcare measures”) provides that healthcare measures include, inter alia; - the examination and vaccination of children born at home (section 1(2)(1)( 14) ); - emergency transportation of endangered pregnant women, women giving birth and newborns in situations of urgent illnesses and conditions (section 1(4)(1)(4)); - professional assistance of a doctor and a midwife in home birth and transportation to a maternity ward (section 1 ( 5 )( 2 )( 2 )( 1) ); - the examination of a woman in her home after giving birth there and an examination in a medical facility six weeks later (section 1 ( 5 )( 2 )( 3 )( 1) ). D. Act on Midwifery 32. The Act on Midwifery ( Zakon o primaljstvu, Official Gazette nos. 120/2008 and 145/2010) provides for the possibility of performing independent midwife work. Approval for performing such work is given by the competent body of the Croatian Chamber of Midwives (section 15). 33. The Act also provides for the possibility for midwives to set up a private practice if they have completed the relevant education and have obtained approval for performing independent work (section 24 ( 1 ) ). The Act refers to the provisions of the Healthcare Act (section 24 ( 2 ) ) for the procedure for setting up and closing a private practice. E. State Registers Act 34. The State Registers Act ( Zakon o državnim maticama, Official Gazette, no. 96/1993), as in force at the material time, set down which persons were obliged to report the birth of a child to the registry of births when the child was born outside a medical facility (section 11 ( 2 ) ). It also laid down a general obligation for officials to verify data before entering it in the State Register if there was a reasonable suspicion that the data was incorrect (section 25 ( 3 ) ). 35. The State Registers Act was amended in 2013 to expressly provide that a person reporting the birth of a child born outside a medical facility must submit medical documents related to the birth or proof of motherhood (section 11 ( 3 ) ). F. Criminal Code 36. The relevant provision of the Criminal Code ( Kazneni zakon, Official Gazette no. 125/11), as in force at the material time, read as follows: Refusal to provide medical assistance in emergency situations Section 183 “ A doctor of medicine, a dentist or other health professional who declines to provide immediate medical assistance to a person in need of such assistance owing to the existence of a risk of permanent damage to his or her health or life shall be punished by imprisonment of up to three years.” Quackery Section 184 ( 1 ) “ Any person who provides medical treatment or other medical assistance while lacking the necessary professional qualifications shall be punished by imprisonment of up to one year.” G. Medical Assistance Act 37. The relevant provisions of the Medical Assistance Act ( Zakon o liječništvu, Official Gazette nos. 121/2003 and 117/2008) provide that a doctor is only allowed to refuse to provide medical assistance when a person is making threats or demonstrating physical aggression towards him or her or another health professional, save for in emergency situations (section 18 ( 4 ) ). In the event of an unlawful refusal to provide medical assistance a doctor can be punished for a misdemeanour and ordered to pay a fine of between HRK 5,000 and 10,000 (section 59). V. RELEVANT INTERNATIONAL AND COMPARATIVE- LAW MATERIAL 38. The other relevant international and comparative- law material is set out in paragraphs 62-68 in the case of Dubská and Krejzová v. the Czech Republic ([GC], nos. 28859/11 and 28473/12, 15 November 2016). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 39. The applicant complained that Croatian law had dissuaded healthcare professionals from assisting her when giving birth at home, in violation of her right to a private life, as provided for in Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The parties ’ arguments (a) The Government 40. The Government maintained that Article 8 was not applicable to the case since the issue at stake was only the personal comfort of the applicant, who had wanted to give birth at home, which could not be part of her right to respect for her private life. There was no scientific proof that giving birth in a medical facility could in any way damage the physical or psychological integrity of a mother or child and thus the legislation concerning home birth as such could not be the subject of an examination by the Court under Article 8 of the Convention. 41. The Government maintained further that the circumstances of the applicant in the present case should be distinguished from those of the applicants in Dubská and Krejzová (cited above). In that case, one of the applicants had eventually given birth at home alone while the other had had to abandon giving birth at home altogether and have her child in a hospital. The applicant in the present case had given birth at home with the assistance of a midwife from abroad. Furthermore, there was no indication that the applicant would not have had emergency medical assistance if the home birth had gone wrong. Also, the applicant had been able to properly register the birth of her child and neither the applicant nor the midwife concerned had been prosecuted. Against that background, the Government deemed that the applicant could not be seen as a victim of the violation alleged. (b) The applicant 42. The applicant replied that the Court ’ s case-law made it clear that the circumstances of giving birth incontestably formed part of a person ’ s private life. That had been confirmed in Ternovszky v. Hungary ( no. 67545/09, § 22, 14 December 2010 ) and in Dubská and Krejzová (cited above). 43. She further submitted that she had decided to give birth at home as her first three hospital deliveries had been stressful as she had felt that her wishes had not been respected and that she had not had control over the procedures that had been followed. However, not being able to find any midwife in the Croatian healthcare system to assist her, she had hired one from abroad, which had caused her feelings of uncertainty and anxiety. In particular, she had feared the criminal sanctions that she or the foreign midwife could have faced. Also, since the foreign midwife had not been licensed to practise in Croatia, there had been no guarantee that the midwife would have been able to arrange emergency transport and admission to hospital if the delivery had gone wrong. Finally, her decision to give birth at home had led to her and her child being denied postnatal care, which had been a common situation for women in Croatia who had decided to give birth at home. She could therefore certainly be considered a victim of the violation complained of. 2. The Court ’ s assessment ( a ) Applicability of Article 8 of the Convention 44. The Court held in a recent Grand Chamber case that although Article 8 could not be interpreted as conferring a right to give birth at home as such, the fact that it was impossible in practice for women to be assisted when giving birth in their private home came within the scope of their right to respect for their private life and accordingly of Article 8. It found that issues related to giving birth, including the choice of the place of birth, were fundamentally linked to a woman ’ s private life and fell within the scope of that concept for the purposes of Article 8 of the Convention (see Dubská and Krejzová, cited above, § 163 ). The Court sees no reason to depart from that view in the present case. ( b ) The applicant ’ s victim status 45. The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, among other authorities, N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 - X). Accordingly, in order to be able to lodge an application in accordance with Article 34 an individual must be able to show that he or she was “directly affected” by the measure complained of. This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015). 46. In the present case, the Court notes that the applicant complained that the domestic legislation concerning home birth was not consolidated and that therefore she could not obtain assistance of a health professional from the Croatian healthcare system when giving birth at home. The Court further notes that in the above-cited case of Dubská and Krejzová the Grand Chamber assessed a situation under Article 8 of the Convention where domestic legislation did not in practice allow for medical assistance during home births. The Court sees no reason to depart from that view in the present case. The fact that the applicant eventually gave birth at home with the assistance of a midwife from abroad does not prompt the Court to conclude that she cannot claim to be a victim of a violation of her rights under Article 8. Consequently, it dismisses the Government ’ s objection as to the applicant ’ s lack of victim status. ( c ) Conclusion as to the admissibility 47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ arguments (a) The applicant 48. The applicant submitted that the domestic legislation concerning home births had placed her in a state of uncertainty as regards the legality of her actions during the vulnerable period of her pregnancy. Moreover, after the delivery she had faced problems such as the denial of postnatal care to her and her child and had still felt anxiety about a possible criminal prosecution. The Government could therefore not claim that there had been no interference with her right to respect for her private life. 49. The applicant submitted further that the legislation on the matter was not foreseeable. In particular, the Act on Midwifery envisaged private practices for midwives (see paragraph 32 above), while the Bylaw on emergency medical assistance and the Plan and programme of healthcare measures guaranteed professional assistance during home births (see paragraphs 28 and 31 above). Such factors tended to support the conclusion that professionally assisted home births were permitted. However, the Healthcare Act did not provide a procedure for midwives to set up a private practice (see paragraphs 21 -25 above). Moreover, the Ministry of Health had expressed a view that assisting with home births would be considered as quackery (see paragraph 12 above). 50. The applicant maintained that the interference at issue did not pursue the legitimate aim of protecting the life and health of women and their new ‑ born babies since by allowing home births – but at the same time making it impossible for women to receive professional assistance – the State de facto exposed women and children to increased risks to their health and life. 51. The applicant did not consider that the State had a wide margin of appreciation on the matter. The issue at stake was a particularly intimate and important aspect of the right of pregnant women to respect for their private life. She also respectfully disagreed with the Grand Chamber in the above ‑ cited case of Dubská and Krejzová that there was no clear common ground regarding skilled attendants at home births. The applicant was of the opinion that there was a clear trend among Council of Europe member States towards a liberal policy on the matter. She added that the consensus on the issue among those States was supported by international expert opinion on the issues of maternal health and the importance of skilled attendants at birth. 52. The applicant added that the prohibitive and punitive approach adopted by the Republic of Croatia could affect women ’ s enjoyment of other fundamental rights, such as the right to life and health. By making it less safe for women to give birth at home, the State could put those other rights at risk. Unlike the Czech Republic, which had tried to initiate an open discussion on the matter of home birth with a view to adopting certain policies and laws, the Croatian Government had entirely failed to deal with the matter. 53. The applicant noted that hospital births in the Republic of Croatia were associated with a high risk of procedures that did not respect women ’ s choices. In her argument she relied on the reports of the Committee on the Elimination of Discrimination against Women, the Parents in Action - Roda NGO and the Gender Equality Ombudsperson, which noted situations of a lack of respect for women ’ s wishes in maternity wards during childbirth (see paragraphs 17-19 above). 54. The applicant contested the Government ’ s argument that Croatia ’ s geographical characteristics and a lack of financial means meant it was not possible to set up an adequate transport system which could ensure the speedy transfer of a mother and child to the nearest hospital in case of an emergency during a home birth (see paragraph 59 below). There was no difference between providing transport for an emergency situation during a home birth or for any other kind of emergency situation. Moreover, the Government did not submit any evidence to demonstrate that the State would face financial constraints if allowing professionally assisted home births. 55. Lastly, the applicant submitted that her situation should be distinguished from that in Dubská and Krejzová (cited above) as she had been refused postnatal care, which had been a common situation for women in Croatia who had decided to give birth at home. Moreover, women who gave birth at home in Croatia often experienced difficulties registering their children in State registers since the relevant law obliged them to submit medical documents to prove their motherhood. Furthermore, midwives were not free from harassment. The Ministry of Health had expressly held that their assisting with home births was considered as quackery (see paragraph 12 above) and they had also been submitted to police questioning (see paragraph 15 above). The applicant thus argued that her situation was more akin to Ternovszky (cited above), in which the Court had held that a lack of legal certainty and threats to healthcare professionals had limited the choices of the applicant in that case when considering home delivery. For the Court, that situation had been incompatible with the notion of “foreseeability” and hence with that of “lawfulness” ( ibid., § 26). (b) The Government 56. The Government firstly argued that there had been no interference with the applicant ’ s right to respect for her private life because she had given birth at home, as she had wished, with the assistance of a midwife from abroad. 57. Were the Court to find that there had been an interference owing to the fact she had not been able to have the assistance of a health professional from the Croatian healthcare system, the Government maintained that it had been based in law since the relevant legislation regulated births in medical facilities only, which implied that planned home births with the assistance of health professionals were not permitted. That was confirmed by the Ministry of Health letter (see paragraph 12 above) to which the applicant had referred in her application to the Court. The possibility to set up private midwife practices was still not regulated by law. Such interference also pursued the legitimate aim of protecting the health and life of mothers and their new-born children. 58. As to the proportionality of the interference, the Government maintained that even though home delivery might be more pleasant for women giving birth, it still represented, in the light of all the scientific findings known to them, an option that was less safe than a full hospital delivery. They noted that the Commission for Perinatal Medicine of the Ministry of Health was of the view that hospitals were the safest places for child deliveries, providing the best guarantees for the preservation of the health and life of both mothers and babies. As such, the question of whether the State should allow its medical staff to participate in such deliveries fell within its margin of appreciation, meaning that each Contracting Party should be absolutely free to decide on its own, on the basis of its own assessment of numerous factors which needed to be considered, whether or not to provide that alternative to its citizens. The Government asserted that the Contracting Parties should not be compelled to make provision for home delivery and that the spirit of the Convention did not require that legislative measures or practices to that effect should be implemented in every Contracting Party. That, however, did not mean that a Contracting Party should entirely disregard the fact that a substantial number of women did not feel comfortable in a hospital environment and that certain adverse effects in relation to child delivery could be linked to that particular feeling of discomfort and fear. 59. The Government submitted that apart from the capital and several other bigger cities the Republic of Croatia consisted mostly of large and sparsely populated rural areas and islands and mountainous terrain that was difficult to access. In such circumstances it was virtually impossible to provide an effective transport system which could ensure the speedy transfer of a mother and child to the nearest hospital if a home birth went wrong. Furthermore, the Republic of Croatia did not for the time being have sufficient financial resources to set up a home birth system which could guarantee the same level of medical services as in medical facilities. 60. The Government submitted that 99.2% of deliveries in Croatia took place in public maternity wards. There were currently thirty-one public maternity wards and one private ward in Croatia. In line with the available space and other capacities, maternity wards allowed women to choose between several possible delivery positions and to have a spouse or other close relative present during giving birth. Mothers -to-be were free to choose the maternity ward in which they wished to give birth. The Government further submitted that in 1993 Croatia had joined the Baby-Friendly Hospital Initiative (BFHI), a programme launched by the WHO and UNICEF. Currently all maternity wards in Croatia were BFHI accredited, that is certified for their excellence in maternity care and support for breastfeeding. In 2015 Croatia had also joined the Mother-Friendly Hospital Initiative and in 2016 it had initiated a pilot programme to comply with the guidelines set down by the International Federation of Gynaecology and Obstetrics. 61. As to the applicant ’ s allegation that she had been denied postnatal care, the Government submitted that doctors were not allowed under the relevant law to refuse to provide medical assistance (see paragraphs 36 and 37 above). Even if her allegation was true, the applicant had never reported such an event to any relevant authority. Finally, there was no dispute about the fact that the applicant had received medical assistance and medical care after the delivery (see paragraph 10 above) and had managed to register her child in the State register (see paragraph 11 above). As regards the anxiety that the applicant had allegedly felt in relation to possible criminal sanctions, the Government maintained that there was no single provision in domestic law which could be understood as criminalising the actions of women who had decided to give birth at home. No woman had ever been punished for such an act. Moreover, no health professional, including the foreign midwife who had assisted the applicant, had ever been prosecuted in criminal proceedings or sanctioned for assisting with a home birth (see paragraph 16 above). The criminal offence of quackery could only be committed by persons who had provided medical assistance without having the necessary professional qualifications (see paragraph 36 above). 62. In conclusion, and having regard to the wide margin of appreciation that should be given to the Contracting States on this issue, the Government argued that the interference with the applicant ’ s right to respect for her private life had been proportionate to the aim pursued. 2. The Court ’ s assessment (a) Whether the case should be examined from the standpoint of the State ’ s negative or positive obligations 63. In the above - cited case of Dubská and Krejzová the Court held that the matter involved “an interference with the applicants ’ right to avail themselves of the assistance of midwives when giving birth at home, owing to the threat of sanctions for midwives, who in practice were prevented from assisting the applicants by the operation of the law” and that “ in any event, as the Court has already held, the applicable principles regarding justification under Article 8 § 2 are broadly similar regardless of analytical approaches adopted” (see Dubská and Krejzová, cited above, § 165). 64. Accordingly, to determine whether the interference in this case entailed a violation of Article 8 of the Convention, the Court must examine whether it was justified under the second paragraph of that provision, that is whether the interference was “in accordance with the law” and “necessary in a democratic society” for the pursuit of one of the “legitimate aims” specified in Article 8. ( b ) Was the interference “in accordance with the law”? 65. The Court reiterates that an impugned interference must have some basis in domestic law, which law must be adequately accessible and be formulated with sufficient precision to enable a citizen to regulate his or her conduct, he or she being able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (ibid., § 167). 66. In the present case, there was no dispute between the parties that the domestic legal provisions providing the legal basis for the impugned interference were accessible to the applicant. The Court sees no reason to disagree on that point, and it must thus establish whether the provisions were also foreseeable. 67. The Court notes firstly that giving birth at home is not, as such, prohibited by the Croatian legal system. There are no provisions under domestic law criminalising the acts of women who decide to give birth in that way, and apparently no woman has ever been punished for such an action (see paragraph 61 above). 68. On the question of whether health professionals were allowed to assist in home births, the Court observes that, pursuant to the Compulsory Health Insurance Act, guaranteed healthcare was provided through health measures established on the basis of the corresponding plan and programme of the Ministry of Health (see paragraphs 29 and 30 above). The corresponding plan and programme included the professional assistance of a doctor and a midwife in a home birth as one of the healthcare measures involved (see paragraph 31 above). Such a regulation tended to support the conclusion that professionally assisted home births were permitted. 69. The Court further observes that the Act on Midwifery provided for midwives being in private practice (see paragraph 33 above). However, the Healthcare Act never expressly regulated the procedure for midwives setting up in midwife practice (see paragraphs 21-25 above). The Court notes that the Healthcare Act was amended several times after the Act on Midwifery came into force, and it remained silent on that matter (see paragraphs 26 and 32 above). Because of this, in reality, no Croatian health professionals, including midwives, officially assisted with home births (see paragraph 8 above). 70. The Court further notes that in its letter of 11 May 2011 the Ministry of Health stated that the relevant domestic law provided that babies were to be delivered in medical facilities. The question of home births had not been regulated by law, and medical assistance in such procedures was considered quackery (see paragraph 12 above). The Court does not find it necessary to assess the accuracy of the Ministry of Health ’ s conclusion that such medical assistance would constitute the criminal offence of quackery (see paragraph 36 above). In any event, it appears that no health professional, including the foreign midwife who assisted the applicant, has ever been prosecuted in a criminal case or sanctioned for assisting with a home birth (see paragraphs 16 and 61 above). 71. The Court also observes that in its letter to the applicant of 1 December 2011 the Croatian Chamber of Midwives, while noting that the matter of midwives in private practice had been regulated in an inconsistent manner, also informed her that, under domestic law, health professionals, including midwives, were unable to assist with home births (see paragraph 8 above). The letter also cited a statement from the Ministry of Health from August 2011, published on the Croatian Chamber of Midwives ’ website, which showed that no system of assisted home births had been set up in Croatia. 72. The Court therefore accepts that at first there might have been some doubt as to whether a system for assisted home births had been set up in Croatia. It therefore finds it appropriate to invite the Croatian authorities to consolidate the relevant legislation so that the matter is expressly and clearly regulated (see paragraphs 65 and 66 above). However, in the present case, it is of the view that the applicant was clearly made aware, through the letters from the Croatian Chamber of Midwives and the Ministry of Health which she received while she was still pregnant with her fourth child, that the relevant domestic law did not allow health professionals, including midwives, to assist with planned home births. 73. The Court therefore holds that the impugned interference was foreseeable for the applicant and in accordance with the law. (c) Did the interference pursue a legitimate aim? 74. Contrary to the applicant ’ s arguments, the Court considers that there are no grounds for doubting that the Croatian State ’ s policy of encouraging hospital births, as reflected in the relevant national legislation, was designed to protect the health and safety of mothers and children during and after delivery (compare to Dubská and Krejzová, cited above, § 172 ). 75. It may accordingly be said that the interference in the present case served the legitimate aim of the protection of the health and rights of others within the meaning of Article 8 § 2 of the Convention ( ibid., § 173 ). (d) Was the interference necessary in a democratic society? 76. The Court summarised the applicable principles in the case of Dubská and Krejzová (ibid.) as follows: “174. An interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, mutatis mutandis, Fernández Martinez v. Spain [GC], no. 56030/07, § 124, ECHR 2014 (extracts)). 175. In this connection, the Court reiterates the fundamentally subsidiary role of the Convention system and recognises that the national authorities have direct democratic legitimation in so far as the protection of human rights is concerned. Moreover, by reason of their direct and continuous contact with the vital forces of their countries, they are in principle better placed than an international court to evaluate local needs and conditions (see, e.g., Maurice v. France [GC], no. 11810/03, § 117, with further references, ECHR 2005-IX). 176. It is therefore primarily the responsibility of the national authorities to make the initial assessment as to where the fair balance lies in assessing the need for an interference in the public interest with individuals ’ rights under Article 8 of the Convention. Accordingly, in adopting legislation intended to strike a balance between competing interests, States must in principle be allowed to determine the means which they consider to be best suited to achieving the aim of reconciling those interests (see Odièvre, cited above, § 49; Van Der Heijden v. the Netherlands [GC], no. 42857/05, § 56, 3 April 2012). 177. While it is for the national authorities to make the initial assessment, the final evaluation as to whether an interference in a particular case is “necessary”, as that term is to be understood within the meaning of Article 8 of the Convention, remains subject to review by the Court (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008; Van Der Heijden, cited above, § 57). 178. A certain margin of appreciation is, in principle, afforded to domestic authorities as regards that assessment; its breadth depends on a number of factors dictated by the particular case. The margin will tend to be relatively narrow where the right at stake is crucial to the individual ’ s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will also be restricted. Where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see Van der Heijden, cited above, §§ 55-60 with further references, and also Parrillo v. Italy [GC], no. 46470/11, § 169, with further references, ECHR 2015). 179. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52 with further references, ECHR 2006-VI; Shelley v. the United Kingdom ( dec. ), no. 23800/06, 4 January 2008; and Hristozov, cited above, § 119).” 77. In the case at hand, the Court has to establish whether the fact that it was impossible in practice for the applicant to be assisted by a health professional from the Croatian healthcare system during her home birth struck a fair balance, on the one hand, between the applicant ’ s right to respect for her private life under Article 8, and, on the other, the State ’ s interest in protecting the health and safety of mothers and children during and after delivery. In addition to this, the Court has to verify whether the respondent State, by allegedly denying postnatal care to the applicant and her child born at home, and by making it difficult for her to register her child in the State register, overstepped the margin of appreciation afforded to it. 78. As to the respondent State passing legislation that did not in practice allow women to be assisted by health professionals from the Croatian healthcare system when giving birth at home, the Court notes that in the above - cited case of Dubská and Krejzová, the Grand Chamber held that the margin of appreciation to be afforded to the national authorities in that case had to be wide, while not being unlimited (see Dubská and Krejzová, cited above, §§ 182-184). In the light of those considerations, the Court must see whether the interference constitutes a proportionate balancing of the competing interests involved, having regard to the margin of appreciation. In cases arising from individual applications the Court ’ s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it. Consequently, the Court ’ s task is not to substitute its own view for that of the competent national authorities in determining the most appropriate policy for regulating matters regarding the circumstances of giving birth. Instead, it must decide on the compatibility with Article 8 of the State ’ s interference in the present case on the basis of the fair-balance test described above (see Dubská and Krejzová, cited above, § 184). 79. The applicant in the present case wished to give birth at home with the assistance of a midwife. The Court accepts that as a consequence of the operation of the legislative provisions in force at the relevant time, she was put in a situation which had a serious impact on her freedom of choice: she was required either to give birth in a hospital, or, if she wished to give birth at home, to do so without the assistance of a midwife and, therefore, with the attendant risks that posed to herself and her baby. In the end, she gave birth at home with a midwife from abroad (see paragraph 9 above). 80. In that regard, the Court takes note of the Government ’ s argument that in the light of all the scientific findings known to them, and even though home delivery might be more pleasant for mothers-to-be, it still represented an option that was not as safe as a full hospital delivery. They noted that the Commission for Perinatal Medicine of the Ministry of Health was of the view that hospitals were the safest places for performing deliveries, providing the best guarantees for the preservation of the health and life of both mothers and newborns (see paragraph 58 above). In the case of Dubská and Krejzová the Court also noted that the risk for mothers and newborns was higher in the case of home births than in the case of births in maternity hospitals which were fully staffed and adequately equipped from a technical and material perspective, and that even if a pregnancy proceeded without any complications and could have therefore been considered a “low-risk” pregnancy, unexpected difficulties could arise during the delivery which would require immediate specialist medical intervention, such as a Caesarean section or special neonatal assistance. Moreover, the Court noted that a maternity hospital could provide all the necessary urgent medical care, whereas this would not be possible in the case of a home birth, even with a midwife attending (see Dubská and Krejzová, cited above, § 186). 81. The Court notes that the applicant could have opted to give birth in any maternity ward in Croatia which she considered likely to respect her wishes in principle (see paragraph 60 above). However, according to the applicant ’ s submissions based on her own experience (see paragraph 4 8 above), the wishes of mothers-to-be do not seem to be fully respected in maternity wards. Those remarks would seem to be confirmed in substance by the reports of the Committee on the Elimination of Discrimination against Women, the Parents in Action - Roda NGO and the Gender Equality Ombudsperson, which noted situations of a lack of respect for women ’ s wishes in maternity wards during childbirth (see paragraphs 17-19 above). 82. In the Court ’ s opinion, those concerns cannot be disregarded when assessing whether the authorities struck a fair balance between the competing interests at stake. At the same time, the Court acknowledges that in recent years according to the Government, various initiatives to improve the situation have been taken, notably by joining the Mother-Friendly Hospital Initiative in 2015 and starting a pilot programme in 2016 to comply with the guidelines set by the International Federation of Gynaecology and Obstetrics (see paragraph 60 above). On that background, the Court finds it appropriate to invite the Croatian authorities to make further progress in such matters by keeping the relevant legal provisions under constant review so as to ensure that they reflect medical and scientific developments while fully respecting women ’ s rights in the field of reproductive health, notably by ensuring adequate conditions for both patients and medical staff in maternity hospitals across the country (compare Dubská and Krejzová, cited above, § 189). 83. The applicant also complained that women deciding to give birth at home, as well as the midwives agreeing to assist them, had faced possible criminal sanctions for their actions. However, as already noted by the Court, there are no provisions under domestic law criminalising the acts of women who have decided to give birth in that way. Moreover, according to the Government, no woman has ever been punished for such actions (see paragraph 6 1 above). 84. The Court further notes that the Ministry of Health expressed a view in its letter of 11 May 2011 that since the question of home birth was not regulated by law medical assistance with home births would be considered quackery (see paragraph 12 above). As already noted by the Court, it does not find it necessary to assess the accuracy of the Ministry of Health ’ s conclusion that such medical assistance would constitute the criminal offence of quackery (see paragraph 36 above). Indeed, although it appears that several midwives suspected of having taken part in the birth had been questioned by the police, apparently no health professional, including the foreign midwife who assisted the applicant, has ever been prosecuted in a criminal case or sanctioned for assisting with a home birth (see paragraphs 15, 16 and 61 above). 85. Taking into account above considerations, the Court is of the view that by not passing legislation that would in practice allow women to be assisted by health professionals from the Croatian healthcare system when giving birth at home, the State did not overstep the wide margin of appreciation afforded to it on the matter (see paragraph 78 above). The Court reiterates that, while it would be possible for the respondent State to allow planned home births, it is not required to do so under the Convention as currently interpreted by the Court. There still remains a great disparity between the legal systems of the Contracting States on the matter (see Dubská and Krejzová, cited above, § 183), and the Court remains respectful of the gradual development of law in the sphere. 86. As to the applicant ’ s complaint that she and her child were denied postnatal care, allegedly a common situation faced by women in Croatia who decided to give birth at home, the Court firstly reiterates that in no circumstances should a child be deprived of his or her right of access to healthcare services on the grounds that he or she was born outside of a medical facility. The best interests of the child must be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (see Dubská and Krejzová, cited above, § 64). 87. In this respect, the Court notes that the applicant never reported the event of being denied postnatal care to any relevant authority. There is thus no document whatsoever to allow the Court to verify that allegation. The Court notes in that regard that under the relevant domestic law a doctor who unlawfully refused to provide medical assistance could be punished for a misdemeanour and ordered to pay a fine of between 5,000 and 10,000 Croatian kunas (see paragraph 36 above). Moreover, the refusal of medical assistance in an emergency situation constituted a criminal offence (see paragraph 37 above). Therefore, if the applicant and her child had initially indeed been refused postnatal care as she alleged and if she had reported the event the doctors involved could have been sanctioned. In any event, it was undisputed that the applicant and her child eventually did receive post-delivery medical care (see paragraph 10 above). 88. The Court further notes that the issue of the first medical examination of children born at home was a matter of discussion between the Ministry of Health and Parents in Action - Roda NGO. According to the Ministry of Health ’ s letter of 31 May 2012, situations in which doctors were faced with having to examine children born at home without there being any medical documentation were becoming more and more frequent. The ministry thus maintained that doctors were obliged to examine such children but were not allowed to register data they were not able to verify (see paragraph 14 above). 89. As to the applicant ’ s complaint that women giving birth at home experienced difficulties in registering their children in State registers as the relevant law obliged them to submit medical documents to prove their motherhood, the Court firstly notes that there is indeed such a requirement under the domestic law (see paragraphs 13, 30 and 34 above). However, the Court finds such a requirement understandable as it is clearly directed at avoiding possible abuses in situations where there is no official information on the birth of a child or its biological parents. As to the applicant ’ s particular situation, the Court notes that her child was born on 15 February 2012 and that she succeeded in registering the birth on 23 February 2012 (see paragraph 11 above). 90. In conclusion, and having regard to the particular circumstances of the present case, the Court is of the view that the interference with the applicant ’ s right to respect for her private life was not disproportionate. 91. Accordingly, there has been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 92. The applicant complained that as the matter of professional assistance with home births was not properly regulated she did not have at her disposal an effective domestic remedy for her complaint related to the violation of her right to respect for her private life. She relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 93. The Government reiterated their arguments submitted under Article 8 of the Convention. 94. The Court reiterates that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority on the grounds of being contrary to the Convention (see, among other authorities, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 94, ECHR 2013 (extracts), and Roche v. the United Kingdom [GC], no. 32555/96, § 137, ECHR 2005-X). In the instant case, the applicant ’ s complaint under Article 13 is at odds with this principle. Consequently, this complaint is manifestly ill-founded and as such must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It accepted that at first there might have been some doubt as to whether a system for assisted home births had been set up in Croatia. It therefore called on the authorities to consolidate the relevant legislation so that the matter is expressly and clearly regulated. However, it found that the applicant had clearly been made aware, through the letters from the Croatian Chamber of Midwives and the Ministry of Health which she had received while she had still been pregnant with her fourth child, that the domestic law did not allow assisted home births. It further found that the authorities had struck the right balance between the applicant’s right to respect for her private life and the State’s interest in protecting the health and safety of mothers and children. It pointed out in particular that Croatia was not currently required under the Convention to allow planned home births. There was still a great disparity between the legal systems of the Contracting States on home births and the Court was sensitive to the fact that the law developed gradually in this area. |
150 | Home birth | III. RELEVANT DOMESTIC LAW A. People ’ s Health Care Act 35. Under section 12a(1) of the People ’ s Health Care Act (no. 20/1966 – zákon o péči o zdraví lidu ), which remained in force until 31 March 2012, an institution which provided health care had to be equipped with appropriate human, material and technical resources depending on the nature and extent of health care it provided. Under section 12a(2) of the Act, the Ministry of Health was to specify, by means of a decree, the requirements for material, human and technical resources in health-care institutions. 36. Section 18(1) of the Act specified that outpatient care, which also included the visiting service, was provided by a general practitioner and other specialists in consulting rooms or in associated outpatient institutions. B. Health Care in Private Health-Care Institutions Act 37. Section 4(1) of the Health Care in Private Health-Care Institutions Act (no. 160/1992 – zákon o zdravotní péči v nestátních zdravotnických zařízeních ), which was in force until 31 March 2012, required private institutions to be equipped with appropriate human, material and technical resources for the type and extent of health care they provided. 38. Under section 4(2)(b), the Ministry of Health was empowered to adopt a decree to specify the requirements for technical and material equipment in private health-care institutions. 39. By virtue of section 5(2)(a), a private institution could provide health care as specified in the decision on registration. 40. Under section 14, a person breaching the Act could be fined, but the amount of the fine was not specified. C. Paramedical Professions Act 41. Under section 6(3) of the Paramedical Professions Act (no. 96/2004 – zákon o nelékařských zdravotnických povoláních ), which entered into force on 1 April 2004, the duties involved in practising the profession of midwife include, inter alia, physiological deliveries and provision of care for newborns. D. Decree no. 424/2004 of the Ministry of Health 42. The Decree of the Ministry of Health on Activities of Medical Staff and Other Specialists ( vyhláška, kterou se stanoví činnosti zdravotnických pracovníků а jiných odborných pracovníků ), which entered into force on 20 July 2004 and remained valid until 13 March 2011, set out the duties of health professions and other professionals. Under section 5(1)(f), midwives could carry out certain activities without professional supervision, including physiological deliveries in emergency situations, together with episiotomy if necessary. E. Decree no. 221/2010 of the Ministry of Health 43. The Decree of the Ministry of Health on Requirements for Material and Technical Equipment in Health-Care Institutions ( vyhláška o požadavcích na věcné a technické vybavení zdravotnických zařízení ), which entered into force on 1 September 2010 and remained valid until 31 March 2012, provided for the possibility of midwives performing deliveries but only in specially equipped rooms, measuring at least 15 square metres, containing the following essential items: ( a) a birthing bed for a delivery room or other appropriate device for carrying out a physiological delivery; (b) an examination light; (c) a sterile clamp or rubber band for the umbilical cord; (d) sterile scissors; (e) an EFM (electronic foetal monitoring) device; (f) a pulse oximeter; (g) a suction unit; (h) a laryngoscope and instruments to secure the airways; (i) a bed for women after the birth; (j) a suitable space and surface for treating the newborn; (k) scales for weighing the newborn; (l) an instrument to measure the newborn ’ s length; and (m) a source of medical oxygen. Moreover, a room for care of a woman and her newborn after the birth, measuring at least 8 square metres, and a shower had to be made available. 44. Such rooms had to be located so as to allow a birth by Caesarean section or an operation to terminate birth to be carried out in a health-care institution providing in-patient care and complying with the requirements set out in the Decree, within fifteen minutes from the discovery of complications. 45. Moreover, the Decree entitled midwives to set up a “contact workplace”, which had to be equipped with: (a) suitable furniture for the work of a midwife; and (b) a mobile phone. 46. Midwives were also required to have a visiting bag containing: (a) a device for detection of foetal sounds; (b) disposable equipment for examining pregnant women; (c) a sphygmomanometer; (d) a stethoscope; (e) a medical thermometer; and (f) first-aid equipment, including a device for cardio-pulmonary resuscitation. 47. Section 2 of the Decree required health-care institutions existing at the date of the Decree ’ s entry into force to comply with the requirements for material and technical equipment laid down in the Decree within twelve months from its entry into force. The period of twelve months was extended to twenty-eight months by Decree no. 234/2011, which entered into force on 31 August 2011. F. Medical Services Act 48. The Medical Services Act (no. 372/2011 – zákon o zdravotních službách ) entered into force on 1 April 2012. It replaced the People ’ s Health Care Act (see paragraphs 3 5 -3 6 above), the Health Care in Private Health ‑ Care Institutions Act (see paragraphs 3 7 -4 0 above) and the Decree on Requirements for Material and Technical Equipment in Health-Care Institutions (see paragraphs 4 3 -4 7 above). 49. In accordance with section 2(2)(a), “health services” means the provision of health care under the Act by health professionals, and also activities carried out by other professionals if these activities are directly connected with the provision of health care. 50. In accordance with section 2(4)(a)(4) of the Act, “health care” means a set of activities and measures carried out in relation to individuals, for purposes including that of assistance during delivery. 51. In accordance with section 4(1), a “health-care institution” means premises intended for the provision of health services. 52. Under section 10 of the Act, the provision of health care in a patient ’ s own social environment, including home care, may involve only such procedures as are not subject to conditions regarding the technical and material equipment necessary for their performance in health-care institutions. 53. Under section 11(5), health services can be provided only in the health-care institutions specified in the licence for the provision of health services, except for health services which are provided in a patient ’ s own social environment. In those cases, providers of health-care services must have their own contact home-care workplace. 54. Pursuant to section 11(6), a health-care institution must possess technical and material equipment for the provision of health services. The technical and material equipment in health-care institutions must correspond to their specialisation and the type and form of health care they provide. Requirements for the minimum technical and material equipment are to be laid down in an implementing decree. 55. Section 114 provides that a person providing a health-care service without an appropriate licence can be fined up to CZK 1,00 0,000 (EUR 37,000). G. Explanatory Report on the Medical Services Act 56. The Explanatory Report on the Medical Services Act reads as follows, in so far as relevant: “The ... legislation ... belong[s] to a group of laws and regulations governing the legal conditions for fulfilling everyone ’ s constitutional right to the protection of health and the constitutional right of citizens to free medical care within the meaning of Article 31 of the Charter of Fundamental Rights and Freedoms and the right to the protection of human dignity, the right to private and family life and physical integrity ... The Act ... defines professional health care ... The State must regulate [such] health care ...; the State is obliged to ensure the availability of health-care services and also their adequate quality and safety. This requirement is satisfied by the condition that professional health care can only be provided by a provider of health-care services ... The ... Act will be one of the pieces of legislation creating the conditions for the performance of the Czech Republic ’ s obligations in the field of health protection and the provision of health-care services, as deriving from ... the International Covenant on Economic, Social and Cultural Rights ... and the European Charter ... The Act also takes into consideration the Convention on the Rights of the Child. ... As regards the provision of health-care services, the patient is an equal partner with the provider and with the medical staff and has the right to give or to refuse to give consent to the health-care services offered, on the basis of information and advice on such services duly given by the provider or a person the provider has designated for that purpose ... Providing patients with health services in their own social environment is often more efficient and appropriate. The patient ’ s own social environment does not necessarily mean only his or her home but can also mean another alternative environment, such as social care homes or children ’ s homes. ... The health-care services provided in the patient ’ s own social environment can be divided into home-care services and outpatient health-care services. Home-care services have a significant effect on planned systemic changes in the health-care system, by... improving patients ’ lives and prolonging their stay in their home environment. ... One of the patient ’ s fundamental rights is the right to free choice with regard to providers of health-care services. ... The Act will provide patients with the right to all information about their condition and about the health-care services to be provided to them. ... As part of care for their own health, individuals are able to make use of other activities based on their own choices; these activities include support for health and other activities in the field of ‘ self-treatment ’ ... The Act does not prevent these activities; it simply does not define them as being part of professional health care and health-care services, the quality of which is guaranteed by the State. The main reason is that it is not feasible to assess the quality of such care objectively and therefore it is not possible to guarantee its safety or efficiency. Therefore, health-care services can only be provided on the basis of the Medical Services Act.” H. Decree of the Ministry of Health no. 92/2012 57. The Decree on Requirements for Minimum Technical and Material Equipment at Health-Care Institutions and Contact Home Care Workplaces ( vyhláška o požadavcích na minimální technické a věcné vybavení zdravotnických zařízení a kontaktních pracovišť domácí péče ) entered into force on 1 April 2012. It replaced the Decree on Requirements for Material and Technical Equipment in Health-Care Institutions (see paragraphs 4 3 -4 7 above). 58. The Decree provides, inter alia, for the possibility of midwives performing deliveries in delivery rooms specially equipped for that purpose. The equipment requirements are the same as those specified in Decree no. 221/2010. However, the Decree includes a new requirement: if a Caesarean section or an operation to terminate birth cannot be performed in a medical institution providing inpatient care within fifteen minutes from the discovery of birth complications, it is necessary to set up a delivery room complying with the requirements indicated in the Decree. Moreover, a midwife ’ s workplace must also be equipped in accordance with the Decree. 59. As regards “contact workplaces” for the provision of nursing care in relation to gynaecology and birth assistance, the Decree requires such workplaces to contain: (a) suitable furniture for the work of a midwife; (b) a filing cupboard if medical records are not kept exclusively in electronic form; (c) a connection to a public mobile telephone network; (d) a device for detection of foetal sounds; (e) disposable equipment for examining pregnant women; (f) a sphygmomanometer; (g) a stethoscope; (h) a medical thermometer; (i) first-aid equipment, including a device for cardio-pulmonary resuscitation; and (j) a box for transporting biological material. The contact workplace must have a surface area of at least 10 sq. m and sanitary facilities for employees. 60. Health-care institutions and contact home-care workplaces existing at the date of the entry into force and satisfying the requirements of the previous Decree had to comply with the requirements laid down in the new Decree within a period of between nine and twelve months. IV. RELEVANT INTERNATIONAL MATERIAL A. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine) 62. The relevant provisions of the Convention on Human Rights and Biomedicine read as follows: Article 5 - General rule “ An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.” Article 6 - Protection of persons not able to consent “... an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. ...” Article 8 - Emergency situation “When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.” 63. Moreover, the explanatory report on the Convention on Human Rights and Biomedicine states in paragraph 34 that “the word ‘ intervention ’ is understood in its widest sense, as in Article 4 – that is to say, it covers all medical acts, in particular interventions performed for the purpose of preventive care, diagnosis, treatment, rehabilitation or research”. B. Convention on the Rights of the Child 64. The relevant provisions of the Convention on the Rights of the Child read as follows: Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. ...” Article 5 “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.” Article 6 “1. States Parties recognise that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child. ...” Article 1 8 “1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...” Article 24 “1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (a) To diminish infant and child mortality; ... (d) To ensure appropriate pre-natal and post-natal health care for mothers; ...” C. Convention on the Elimination of All Forms of Discrimination against Women 65. The Committee on the Elimination of Discrimination against Women recommended in its Concluding Observations on the Czech Republic of 22 October 2010 (CEDAW/C/CZE/CO/5), under the heading “ Health” in particular: “36. While acknowledging the need to ensure maximum safety for mothers and newborns during childbirth, as well as the State party ’ s low perinatal mortality rate, the Committee takes note of reports of interference with women ’ s reproductive health choices in hospitals, including the routine application of medical interventions, reportedly often without the woman ’ s free, prior and informed consent or any medical indication, a rapid increase in the caesarean section rate, separation of newborns from their mothers for up to several hours without health-related reasons, refusal to release the mother and child from hospital before 72 hours after childbirth, and patronizing attitudes of doctors which impede the exercise by mothers of their freedom of choice. It also notes reports about women ’ s limited options for delivering their babies outside hospitals. 37. The Committee recommends that the State party consider accelerating the adoption of a law on patients ’ rights, including women ’ s reproductive rights; adopt a protocol of normal birth care ensuring respect for patients ’ rights and avoiding unnecessary medical interventions; ensure that all interventions are performed only with the woman ’ s free, prior and informed consent; monitor the quality of care in maternity hospitals; provide mandatory training for all health professionals on patients ’ rights and related ethical standards; continue raising patients ’ awareness of their rights, including by disseminating information; and consider taking steps to make midwife-assisted childbirth outside hospitals a safe and affordable option for women.” 66. In its Concluding Observations on the Czech Republic of 14 March 2016 (CEDAW/C/CZE/CO/6), the Committee recommended the following: “ 4. The Committee welcomes the progress achieved since the consideration in 2010 of the State party ’ s fifth periodic report (CEDAW/C/CZE/CO/5) in undertaking legislative reforms, including the adoption of: (a) The adoption of the Act No. 372/2011 Coll., on health services and the terms and conditions for the providing of such services (The Act on Healthcare Services), as amended by Act No. 167/2012 Coll.; ... ... 30. The Committee welcomes the low rates of perinatal mortality in the State party. However, it is concerned about continued reports on the conditions for childbirth and obstetric services in the State party unduly curtailing women ’ s reproductive health choices, including: (a) Unnecessary separation of newborns from their mothers without medical grounds; (b) Disproportionate limitations on home childbirths; (c) Frequent use of episiotomy without medical need and in contravention of the mother ’ s preference to abstain from them; and (d) Undue restrictions on the use of midwives in lieu of physicians/gynecologists in situations where such use does not pose a health risk. 31. The Committee reiterates its previous recommendation that the State party accelerate the adoption of a law on patients ’ rights, including women ’ s reproductive rights. In doing so, the State party should: (a) Adopt clear guidelines for ensuring that the separation of newborns from their mothers is subject to the requirement of medical necessity; (b) Establish a prenatal care system that allows for the effective assessment of the suitability of home childbirths and the option for it where appropriate; (c) In light of its recent adoption of Act No. 372/2011 Coll., on health services and the terms and conditions for the providing of such services, ensure its effective implementation in compliance with the Convention, including by: Adopting and enforcing a protocol of normal birth care ensuring respect for patients ’ rights and avoiding unnecessary medical interventions; and ensuring that all interventions are performed only with the woman ’ s free, prior and informed consent; monitoring the quality of care in maternity hospitals; providing mandatory training for all health professionals on patients ’ rights and related ethical standards; continue raising patients ’ awareness of their rights, including by disseminating information; and (d) Undertake measures, including legislation, to make midwife-assisted childbirth outside hospitals a safe and affordable option for women.” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 69. The applicants complained that Czech law did not allow health professionals to assist them with giving birth at home, in violation of the right to private life as provided for in Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 70. The Government contested that argument. A. The Chamber judgment 71. In its judgment of 11 December 2014, the Chamber held that there had been no violation of Article 8 of the Convention. It concluded that giving birth was a particularly intimate aspect of a mother ’ s private life encompassing issues of physical and psychological integrity, medical intervention, reproductive health and the protection of health-related information. Decisions regarding the circumstances of giving birth, including the choice of the place of birth, therefore fell within the scope of the mother ’ s private life for the purposes of Article 8 of the Convention. The Chamber considered it appropriate to analyse the applicants ’ complaints as concerning negative obligations: the fact that it had been impossible for the applicants to be assisted by midwives when giving birth at home amounted to an interference with their right to respect for their private life. 72. The interference was in accordance with the law since, although the legislation was not entirely clear, the applicants had nevertheless been able to foresee with a degree that was reasonable in the circumstances that the assistance of a health professional at a home birth was not permitted by law. The interference had served a legitimate aim as it had been designed to protect the health and safety of both the newborn child and, at least indirectly, the mother. 73. As to whether the interference had been necessary in a democratic society, the Chamber held that the respondent State was entitled to a wide margin of appreciation on account of the need for an assessment by the national authorities of expert and scientific data concerning the relative risks of hospital and home births, the need for strong State involvement because of newborn children ’ s vulnerability and dependence on others, the lack of any clear common ground among the member States on the question of home births and, lastly, general social and economic policy considerations, such as the allocation of resources to set up an adequate emergency system for home births. 74. The Chamber held that while the situation in question had a serious impact on the applicants ’ freedom of choice, the Government had focused primarily on the legitimate aim of protecting the best interests of the child. Depending on their nature and seriousness, the child ’ s interests could override those of the parent, who was not entitled under Article 8 of the Convention to take measures that would harm the child ’ s health and development. While there was generally no conflict of interest between mother and child, certain choices as to the place, circumstances or method of delivery could give rise to an increased risk to the health and safety of the newborn child, as the figures for perinatal and neonatal deaths attested. 75. Although the majority of the research studies available to the Chamber on the safety of home births indicated that there was no increased risk compared to hospital births, this was true only if certain conditions were fulfilled, namely that the birth was low-risk, attended by a qualified midwife and close to a hospital in the event of an emergency. Thus, situations such as in the Czech Republic, where health professionals were not allowed to assist mothers giving birth at home and where there was no special emergency aid available, actually increased the risk to the life and health of mother and newborn. At the same time, however, the Government had argued that the risk for newborn children was higher in the case of home births and it was true that even where a pregnancy seemed to be without complications, unexpected difficulties requiring specialised medical intervention could arise during delivery. In these circumstances, the Chamber held that the mothers concerned, including the applicants, could not be said to have had to bear a disproportionate and excessive burden, and that accordingly, in adopting and applying the policy relating to home births, the Czech authorities had not exceeded the wide margin of appreciation afforded to them or upset the requisite fair balance between the competing interests. 76. The Chamber lastly noted that notwithstanding this finding, the authorities should keep the relevant provisions under constant review, taking into account medical, scientific and legal developments. B. The parties ’ submissions to the Grand Chamber 1. The applicants (a) Negative or positive obligations ( i ) The applicant Ms Dubská 77. The applicant maintained that the present case concerned the protection of both women and their children ’ s health, which was seriously undermined when the State allowed women to give birth at home but adopted regulations that made it impossible for them to receive assistance from a midwife. Relying on the Chamber judgment, the applicant submitted that the State had interfered with her private life. Although the case could be analysed through the lens of both positive and negative obligations, she considered it appropriate to assess the case primarily in terms of the negative obligation, since the fact that midwives were prohibited from assisting pregnant women with home births could be viewed as an interference with her right to respect for her private life. In other words, as a direct result of the State ’ s policies the applicant had been unable to obtain the assistance of a midwife when giving birth. (ii) The applicant Ms Krejzová 78. The applicant stated that her inability to effectively opt for any alternative model of childbirth and the requirement for her to surrender to the obstetric model of birth care in hospital – causing her to experience obstetric violence – represented a serious breach of her right to decide on the circumstances in which to give birth, and interference with her right to physical and psychological integrity under Article 8 of the Convention. Although she believed that the circumstances of her case called for an assessment primarily in terms of the Government ’ s positive obligations, the applicant intended to apply a holistic approach to the assessment of whether the damage sustained by her was justifiable in the light of the relevant principles of the Convention, bearing in mind that the underlying principles of legality, legitimacy and proportionality were inherent in both the positive and negative obligations of the State. (b) Lawfulness (i) The applicant Ms Dubská 79. The applicant maintained that the Czech legal system allowed for an interpretation to the effect that the assistance of a health-care professional at a home birth was permitted. Since there was a legal framework which regulated the duties of midwives, women ’ s right to self-determination and informed consent and the institution of in-home care – which also included assistance of health-care professionals with a home birth – it could be said that there was a minimum legal and institutional environment that allowed women to choose their place of birth. The applicant stated that recognising the possibility of choosing home birth did not require any detailed and explicit regulations or any enhancement of the existing emergency services. Furthermore, emergency services were already available to any women in the Czech Republic, regardless of where they chose to give birth and whether a health-care professional was present during the delivery or not. 80. The applicant maintained that while legislation on home birth provided for the right of patients to decide and guaranteed that they could opt for home birth as a lawful alternative, this legislation, or at least its interpretation, was not clear or certain concerning the possibility of midwife services at home. 81. Decree no. 221/2010 had entered into force on 1 September 2010, making no changes to the regulation of home births, and not imposing a ban on the provision of assistance during a home birth. The Decree identified three possible workplaces for midwives: a workplace where childbirth was allowed; a workplace where physiological childbirth was not allowed; and a midwife ’ s office for in-home care. It did not actually forbid midwives to perform home births, so it was unclear whether a midwife who had an office for in-home care could or could not provide assistance with home births outside her workplace. The applicant added in that connection that section 18(1) of the People ’ s Health Act permitted in-home care as part of health care. The Decree failed to regulate midwifery in a detailed manner. The applicant argued that even a midwife who had a registered workplace where childbirth was not allowed could offer assistance with a hospital birth and accompany a woman to hospital, despite not being employed by the hospital in question, provided that she concluded a special contract with it. The Decree had been in force only until 31 March 2012, and therefore had been unable to change the ambiguous situation which had existed before its adoption. Indeed, under section 2(1), health-care facilities already in operation had been given a twelve-month interim period to comply with the requirements of the Decree. The applicant noted in that connection that at the time when she had given birth, the Decree had been in force for only eight months and the existing health-care facilities – including midwives, who faced an unclear and unforeseeable registration process – had been under no obligation to comply with it. 82. Referring to the Court ’ s judgment in Gillan and Quinton v. the United Kingdom (no. 4158/05, § 77, ECHR 2010 (extracts)), the applicant stressed that the legislation in place had not set any limits for decisions of the Ministry of Health regarding the conditions under which midwives could work in the Czech Republic. Furthermore, in the absence of any direct regulation of home births, no clear or transparent rules had been set for regional offices when determining which midwives could be granted a licence and the scope of such a licence. 83. It was only after the applicant had given birth that the Medical Services Act (no. 372/2011) had been passed and had entered into force (on 1 April 2012), together with Decree no. 92/2012. The applicant stated that the contents and principles of the legal regulations remained unchanged. Indeed, the Medical Services Act provided for in-home care as one of the forms of health care, one of its variants being nursing care (section 10). The applicant stated that the definition of nursing care clearly included health care provided during pregnancy and childbirth (section 5(2)(g)). Furthermore, the Decree set down the requirements for technical equipment for midwives providing in-home care (Appendix no. 9). However, the Act contained a new provision enshrining the right of patients to receive health services in the least restrictive environment possible, provided that the quality and safety of such services was ensured as well (section 28(3)(k)). The applicant emphasised that neither the Act nor the Decree contained any restrictions preventing midwives from providing health services during home births in the form of in-home care. However, the legislation was interpreted by the Government and other public authorities in such a way that midwives were not allowed to provide assistance at home births, and this had a clear chilling effect on midwives, who were unwilling to provide such assistance. The applicant contended that the legislation was not accessible and foreseeable in its application as different interpretations were possible. She therefore disputed the Chamber ’ s conclusion that she could have reasonably foreseen that the assistance of a medical professional at a home birth was not allowed by law. (ii) The applicant Ms Krejzová 84. The applicant agreed with the Government that Czech law had not allowed assisted home births at the time of her delivery in May 2012. However, she pointed out that during most of her pregnancy she had been bound by the pre-April 2012 legislation. The applicant reiterated in that connection that prior to 1 April 2012, there had been no statutory restriction on midwives providing health care during home births. In order to provide care, a midwife needed, inter alia, an “operational” licence authorising her to be regarded as a non-governmental medical facility. After the adoption of Decree no. 221/2010, which required midwives to have equivalent human, material and technical resources to those available in a delivery room in maternity hospitals, no midwife had been granted such a licence. However, although it had imposed extensive requirements on midwives in terms of equipment, the Decree had not automatically terminated the operational licences already issued. As a result, while they were still bound by the availability of compulsory equipment, there were midwives who theoretically could carry on their activities in line with the previous regulations, or rather the previous legal vacuum. As a result, pregnant women lacked legal certainty as to whether they could enjoy the assistance of a midwife during a home birth, and similarly midwives lacked the same certainty as to whether they could legally provide such assistance. Such a situation contravened the notions of foreseeability and absence of arbitrariness. 85. As to the legislation introduced in 2012, namely Decree no. 92/2012, which in general imposed similarly extensive requirements on midwives in terms of human, material and technical resources, the applicant submitted that it infringed the compulsory procedure for the adoption of secondary legislation by the Ministry of Health. Ministries were obliged to ensure that a regulatory impact assessment was carried out in respect of new regulations. However, such assessments had not been performed, let alone published, by the commencement of the process for the adoption of Decree no. 221/2010 and Decree no. 92/2012, with the result that there had been no effective public scrutiny of the exercise of the legislative power delegated to the Ministry of Health. (c) Legitimate aim (i) The applicant Ms Dubská 86. The applicant maintained that the Chamber had been incorrect in accepting the purported legitimate aim relied on by the Government. In her submission, the policy pursued by the State did not have the effect of protecting the health and life of women and their children, but instead exacerbated threats to their health and life. There was no logical connection between the declared legitimate aim of protecting the life and health of women and children on the one hand, and the interference with the right to protection of private life consisting in preventing the provision of health care during home births on the other hand. Instead, the prohibition on providing skilled care exposed women to increased risks to their health and life. (ii) The applicant Ms Krejzová 87. The applicant stated that in the present case, there was no legitimate aim which could have been pursued by preventing her from enjoying midwife-based care. 88. The principle of legitimacy inherently required that the aim pursued should be specific. This necessitated detailed knowledge on the State ’ s part of the specific matter to be regulated and of any deficiencies or room for improvement. The applicant pointed out that the necessity of detailed knowledge came to the fore when taking into account the complex matter at issue in the present case, which required an assessment by medical experts and scientific data concerning the relative risks of hospital and home births. Since the Government had introduced specific legislation entirely denying women the possibility of assistance from midwives at planned births outside hospital, it was reasonable to expect that such a measure should be based on sufficient expert analysis and scientific data justifying it, in order to meet the criterion of legitimacy. 89. Indeed, until Czech women had been denied the right to decide on the circumstances of delivery in 2010 and 2012, it had been legally possible for them since 1992 to enjoy the assistance of a midwife during a home birth. The Government had thus had two decades to procure scientific data concerning out-of-hospital midwifery care and to carry out a comprehensive analysis of such care. However, they had never even claimed to have performed such a background analysis. Therefore, when denying women in 2010 and 2012 the right to decide on the circumstances in which they gave birth, the Government had not actually known what specific negative aspects and risks relating to assisted home births were to be eliminated by the legislation in question and what specific positive aim was to be achieved. (d) Necessity in a democratic society (i) The applicant Ms Dubská 90. The applicant submitted that the present case was to be distinguished from the cases of Stübing v. Germany (no. 43547/08, 12 April 2012) and A, B and C v. Ireland ([GC], no. 25579/05, ECHR 2010), both of which had been referred to by the Chamber. The Court had found that both cases concerned issues of a “moral” nature and that A, B and C v. Ireland involved issues of particular “sensitivity” in the country concerned, and this had led it to allow a wide margin of appreciation despite the existence of common ground or consensus among member States. 91. The applicant submitted that the present case did not concern moral or sensitive questions and that the Czech Republic had not suggested that any such matters were at issue, or that the aim or interest pursued by the State ’ s interference with the applicant ’ s rights under Article 8 was the protection of public morals. Moreover, the Chamber had incorrectly found that there was no clear common ground regarding skilled attendants at home births. In fact, sixteen out of thirty-two Council of Europe member States expressly allowed skilled attendants at a home birth under certain conditions, in five countries this was not expressly regulated but accepted in practice, and in two States legislation allowing home birth was being considered. The applicant was of the opinion that there was significant common ground among member States regarding the best way of safeguarding the interests of women wishing to give birth at home by allowing midwives to provide skilled assistance to them. 92. The applicant further stated that the penalising approach adopted by the Czech Republic might affect women ’ s enjoyment of other fundamental rights, such as the right to life and health. By making birth at home less safe for women, the State might put these other rights at risk. As a result, the margin of appreciation should be narrow. The applicant added that the consensus among member States was supported by international expert opinion on the issues of maternal health and the importance of skilled attendants at birth. She referred in this connection to opinions of the World Health Organisation. 93. The applicant noted that the Chamber ’ s admission that the conditions in most Czech hospitals were questionable, as far as respecting the mother ’ s choices was concerned, was in fact a very euphemistic way of describing treatment which often attained the level of inhuman and degrading treatment prohibited by Article 3 of the Convention. In her submission, hospital births in the Czech Republic were associated with a high risk of procedures that did not respect women ’ s choices and often were even detrimental to their health or the health of the newborn child. In addition, the national courts had repeatedly failed to afford protection where the rights of women had been violated in Czech maternity hospitals. This represented a type of violence which, in the Czech context, was completely ignored and downplayed. 94. The applicant further pointed out that the State policy of preventing midwives or other skilled birth attendants from assisting women during home births was inconsistent with international standards regarding the elimination of preventable maternal and child mortality and morbidity. In addition, without providing any specifics, the applicant claimed that the situation in the Czech Republic was at odds with the obligations of the State under European Union law. (ii) The applicant Ms Krejzová 95. The applicant stated that the right of women to choose the circumstances in which to give birth involved the general notion of choice, which comprised quantitative and qualitative components, both of them to be satisfied concurrently. 96. It had been undisputed between the parties that the Medical Services Act and Decree no. 92/2012 prohibited the provision of midwife-based care at any births outside hospitals and that if the applicant intended to enjoy any assistance from qualified medical personnel, she had to give birth in hospital. Hence, the Czech childbirth set-up was a single-option one, being inherently incompatible with the notion of women ’ s choice of the circumstances in which to give birth. 97. The applicant further stated that matters relating to pregnancy and delivery and the extent of women ’ s freedom in this regard also raised significant gender issues. Women ’ s reproductive rights stood for an inherently feminine area which had been oppressed by men, inter alia through the relocation and transformation of childbirth by the medical profession, thus weakening women ’ s natural responsibilities. This relocation had brought a new notion of hierarchy into the field of pregnancy and childbirth, such a notion being at odds with midwife-based care arising from a holistic, feminine approach to childbirth. In the masculine-driven field of biomedical obstetrics, a woman ’ s body forfeited its fundamental privacy and became vulnerable when faced with a male medical expert acting as a sort of public authority. 98. The applicant reiterated that pregnancy and childbirth represented the most intimate aspects of a woman ’ s life, while the intimacy of the delicate act of childbirth inherently involved exposure of the woman ’ s body and her deepest emotions to other people. The right to self-determination included the freedom to decide whether to expose one ’ s body at all, and to what extent, to specific third parties. However, women giving birth could not ipso facto enjoy the same extent of control over their bodies in this regard, since they were compelled to share their most intimate sphere with third parties during childbirth. Taking into account the inherent limitations on a woman ’ s right to self-determination in this context, mechanisms compensating for such limitations were required. The right of women to decide on the circumstances in which to give birth was one of the most significant mechanisms of this kind. The applicant therefore asserted that her right to decide on the circumstances of delivery, as a mechanism compensating for her limited freedom of self-determination, did not in principle allow for further limitations deriving from the Government ’ s margin of appreciation, which, for this reason also, had to be a narrow one. 99. Regarding the issue of European consensus in this matter, the applicant noted that out of thirty-three States Parties to the Convention, only four of them, including the Czech Republic, made assisted birth outside hospitals illegal and subject to sanctions in respect of medical professionals. Just as the existence of a European consensus narrowed the Government ’ s margin of appreciation in terms of a quantitative argument, the concept of the Convention as a living instrument further narrowed the Government ’ s margin of appreciation on qualitative grounds. In the applicant ’ s submission, the margin of appreciation was all the narrower when common values of member States were identified not only under the Convention, but also in other international instruments, regardless of whether they were binding or whether most States Parties to the Convention had ratified them, and also in the light of the general practice, moral climate and conduct observed in the member States. 100. The applicant further maintained that the monopolisation of hospital care did not represent any safety benefit for newborns but actually increased the risks for the mother, including the risk of obstetric violence, and that home births did not have any adverse impact on perinatal mortality. 101. In respect of the fair balance to be struck between the competing private and public interests, since a home birth was safer for low-risk expectant mothers than a hospital birth, as it did not involve any invasive, routine and harmful procedures, the public interest in the health and safety of expectant mothers could not be considered to be the interest outweighing the applicant ’ s private right. Moreover, the newborn ’ s health and safety was not the public interest at stake either. It had actually been proved that both medical childbirth in hospital and assisted home births provided a similar level of safety and health for the newborn child. Therefore, since in terms of safety the obstetric mode of childbirth did not achieve better results than assisted home births, this interest likewise could not represent a valid public interest that could outweigh the applicant ’ s right to choose the circumstances in which to give birth. 102. In the applicant ’ s submission, there were other reasons supporting a conclusion that there had been a lack of proportionality and of a fair balance between competing interests, such as the requirement to submit to undesired medical treatment, the adverse effects of the Government ’ s measures on childbirths outside hospital and the Government ’ s breach of their obligations under international treaties. 2. The Government 103. At the outset, the Government informed the Court about recent developments concerning the issues of obstetrics, midwifery and related women ’ s rights. They stated that in 2014 a new governmental expert committee had been set up involving experts from various relevant fields, including representatives of care recipients, midwives ’ associations, physicians ’ associations, the Ministry of Health, public health-insurance companies and lawyers. The committee focused on the complex situation in the Czech obstetric and midwife-based system of care, including issues relating to respect for women ’ s rights and wishes, such as the right to choose from among various circumstances in which to give birth. It was intended to serve as an expert body with the possibility of issuing recommendations, including of a legislative nature, to the Government through the Governmental Council for Equal Opportunities for Women and Men. 104. The Government further stated that in 2015 the Czech Gynaecological and Obstetrical Society had issued an official statement in which it had identified the leading principles in obstetric care in the Czech Republic: the provision of such care by both physicians and midwives in adequately equipped premises only and in close proximity to a higher level of health care; close cooperation between physicians and midwives in the area of obstetric care; a common practice of midwife-led deliveries in cases of physiological pregnancies; the provision of care according to regularly updated guidelines reflecting current scientific and international trends; and adherence to the rights of patients to respectful care, privacy and autonomy. 105. They also referred to several scientific papers which had been published in the American Journal of Obstetrics and Gynecology since 2013, based on new research on the safety of birth in relation to various birth settings and birth attendants. According to the research findings, home births were strongly associated with worse outcomes than births in adequately equipped health-care facilities, regardless of the presence of a birth attendant. Therefore, home birth did not meet current standards for patient safety in obstetrics, as it entailed an unnecessary, preventable and irremediable increased risk of harm for pregnant, foetal and neonatal patients. (a) Negative or positive obligations 106. The Government argued that the case should be examined exclusively from the perspective of positive obligations. They observed that the law in force did not prohibit childbearing women from giving birth at their private home, and that no sanctions were imposed by the authorities in such cases. Accordingly, in the Government ’ s view, the core question in the present case was whether the State should broaden the current scope of health care provided to women giving birth in the Czech Republic. The provision of health care in general was an area where regulation was the default, so that the State could guarantee a certain quality and standard for both private and public health care. In order to “allow” the assistance of health professionals at home births, the Government would have to put in place a considerable legislative and administrative framework, in addition to other facilities, including a change to the system of emergency care. 107. Alternatively, the Government suggested that the Court leave open the question whether the State ’ s positive or negative obligations were at issue, referring in particular to the case of Hristozov and Others v. Bulgaria (nos. 47039/11 and 358/12, ECHR 2012 (extracts)). 108. Should the Court, however, decide to examine the present case from the perspective of negative obligations, the Government submitted that there had been no interference with the applicants ’ right to respect for their private life: the law in force did not prohibit childbearing women from giving birth at their private homes and the authorities did not punish them for doing so. (b) Lawfulness 109. The Government submitted that the provisions of the Medical Services Act clearly established that the assistance of a health professional at a delivery constituted health care that could be provided only in a health-care facility meeting clearly defined minimum requirements set out in the implementing decree. There were explicit exceptions to the rule that health care must be provided in adequately equipped health-care facilities in places specified in the licence. These exceptions included health care provided in the patient ’ s own social environment (for example, private homes) and emergency health care. The Government emphasised that assistance at a planned delivery did not fall under any of these exceptions. In particular, it did not fall under health care provided in the patient ’ s own social environment as defined in section 10 of the Medical Services Act, since this provision explicitly specified that where health care was provided in the patient ’ s own social environment, only those medical procedures were allowed which were not subject to requirements concerning the technical and material equipment necessary for their performance in health-care facilities. However, assistance at delivery was subject to such requirements. 110. Therefore, the regional authorities could not and would not issue a licence for the provision of health-care services to a midwife in a field entitling her to provide such services at home births. Without a licence, a health-care provider was not allowed to provide health-care services. 111. The Government further submitted that the relevant legal framework ensured legal certainty and foreseeability as it laid down unambiguous and precise requirements that had to be fulfilled when assisting at any planned delivery, regardless of whether such assistance was provided by a midwife or a doctor. Contrary to the Hungarian law which had been criticised by the Court for its lack of foreseeability in the case of Ternovszky v. Hungary (no. 67545/09, 14 December 2010), the Czech legislation provided that health professionals, including midwives, could assist at deliveries only in adequately equipped premises with clearly defined requirements that had to be fulfilled for the provision of such health care. (c) Legitimate aim 112. The Government argued that the policy in issue was designed to protect the health and safety of the newborn child during and after delivery and, at least indirectly, that of the mother. These interests echoed the general legitimate aims of the protection of health and the protection of the rights of others. (d) Necessity in a democratic society 113. The Government emphasised that, in order to safeguard the public interest in the protection of health and life, one of the primary tasks of the State was to ensure and maintain a certain standard and quality of health care, regardless of whether it was provided on a public or private basis. The State should not therefore be forced to allow a form of health care which they did not consider safe. 114. The Government further observed that the applicable domestic legislation aimed to ensure that health care was provided in “safe places of delivery” – that is, in adequately equipped premises close to a higher level of health care – in order to minimise the risks to the health and life of the newborn or that of the mother when sudden complications occurred. Lowering these medical standards could increase the risks associated with the provision of health care throughout the childbirth process and decrease the level and quality of such care. 115. In the Government ’ s submission, tensions between the applicants ’ claims and the obligations under the right to life and health supported the Government ’ s view that the right to respect for private life could not be so extensively interpreted as to require the State to put in place a framework allowing for the provision of health care during home birth when the authorities, in cooperation with experts in the fields of obstetrics and midwifery, had determined that the most suitable State policy, reflecting the strong above-mentioned public interest, was to provide free, accessible care for birthing in places with adequate medical equipment and the ability to respond quickly to emergencies. The mere assistance of a midwife at a home birth was insufficient. If sudden complications occurred, the newborn could be the subject of risks which were, however, avoidable. Health professionals, including midwives, could not deal effectively with such complications in private homes, since the premises would not be adequately equipped for that purpose and often were not in close proximity to a higher level of health care. In other words, in cases of planned births in private homes, health care would not be provided in a safe place for delivery. 116. The Government further submitted that the legislation under review required health professionals to conduct planned deliveries only in adequately equipped premises and in close proximity to a higher level of health care. Such requirements could not be regarded as measures specifically preventing midwives from assisting at home births, but as the minimum necessary standards for providing health care at any planned delivery. The minimum requirements in question were not excessive, effectively serving the aim of minimising the risks of acute complications by detecting them in a timely manner and securing a quick solution. 117. Referring to several examples of good practice, the Government further disagreed with the Chamber ’ s conclusion that the conditions in most local hospitals were questionable, as far as respecting the choices of mothers was concerned. They argued that due weight had been given to the privacy interests involved and that the Czech birth policy had been crafted in an effort to ensure an appropriate balance, taking into account the interests of both the child and the mother. They observed that there was a clear and proven trend in Czech maternity hospitals towards fulfilling childbearing women ’ s rights, including the right to choose from among a wide range of circumstances in which to give birth. 118. The Government drew the Court ’ s attention to the 2013 European Perinatal Health Report, according to which the Czech Republic had the lowest foetal mortality rate and also, together with Iceland and Cyprus, the lowest early neonatal mortality rate in Europe (see paragraph 29 above). They noted that those objectively exceptional results were primarily caused by the sophisticated system of high-level obstetric care and the legislation in force, ensuring that such health care (namely assistance with deliveries) could only be provided in adequately equipped premises. The Government underlined in this connection that such care was available free of charge to all childbearing women. 119. Overall, the Government expressed their strong conviction that on account of the very nature of the issue at stake, involving complex matters of health-care policy, including expert and scientific considerations and other general economic policy considerations, the State had a broad margin of appreciation, which it had not overstepped in this case. 120. In addition, the Government disputed the third-party observations of certain interveners. In respect of those submitted by the Public Defender of Rights, the Government maintained that they did not represent a reliable source of information for the purposes of the present case, having regard, in particular, to the fact that they referred to a few sparse complaints of alleged mistreatment of women in Czech maternity hospitals – representing a negligible fraction of all instances of childbirth taking place in the country – which the Public Defender herself had not yet fully examined and determined. 121. They also disputed part of the information included in the observations of the Czech Union of Midwives ( Unie porodních asistentek – UNIPA). 122. Finally, regarding the Royal College of Midwives, which advocated a system like the one existing in the United Kingdom, the Government stated that there were several cultures and health-care systems with considerable differences in Europe, some of which showed more satisfactory results than the United Kingdom. In the Government ’ s submission, the third-party intervener had omitted to mention that the Czech Republic had one of the lowest perinatal mortality rates in Europe and that the corresponding results in the United Kingdom were far worse. The British health-care system did not lead to better objective results. It was the Government ’ s view that the Court should not rule on the various practical arrangements available for the organisation of health-care systems. 3. Third-party observations (a) The Government of the Republic of Croatia 123. The Croatian Government noted that their country had similar legislative arrangements regarding home birth to those in force in the Czech Republic. 124. In their submission, planned home delivery, in the light of all the scientific findings known to them, still represented a less safe option compared to full hospital delivery. They note that the Commission for Perinatal Medicine of the Ministry of Health of the Republic of Croatia is of the view that the hospitals are the safest venues for performing deliveries, giving both to a mother and a new-born the best guarantees for the preservation of their health and life. As such, the question whether the State should allow its medical staff to participate in such deliveries fell within its own margin of appreciation, meaning that each Contracting Party should be absolutely free to decide on its own, on the basis of its own assessment of numerous factors which needed to be considered, whether to provide this alternative to its citizens or not. The Croatian Government asserted that the Contracting Parties should not be compelled to make provision for home delivery, and that the spirit of the Convention did not require that legislative measures or practices to that effect should be implemented in every Contracting Party. That, however, did not mean that a Contracting Party should entirely disregard the fact that a substantial number of women did not feel comfortable in a hospital environment, and that certain adverse effects in relation to delivery could be linked to that particular feeling of discomfort and fear. 125. However, the Croatian Government did not think that the solution to this problem lay in making compulsory provision for assisted home delivery. A compromise could be found in the implementation of measures aimed at providing a higher level of hospital comfort. Ensuring a home-like hospital environment, the possibility of the partner or close relatives being present during the delivery, rooming-in, respect for pregnant women ’ s wishes prior to and during labour as regards the choice of available medical procedures, and alternative positions for women during labour were all possible ways of providing the best of both worlds. 126. The Croatian Government submitted that respect for women ’ s wishes regarding the above-mentioned aspects, in the context of Article 8 of the Convention, undoubtedly fell well within the ambit of the Convention; assisted home births, however, did not. (b) The Government of the Slovak Republic 127. The Slovak Government fully supported the Chamber ’ s finding of no violation of Article 8 of the Convention in the present case. At the same time, they submitted that it would be more appropriate to examine the case from the perspective of the State ’ s positive rather than negative obligations. 128. Referring to Article 12 of the International Covenant on Economic, Social and Cultural Rights, Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women, Article 24 of the Convention on the Rights of the Child and paragraphs 15, 90 and 94 of General Comment no. 15 (2013) on the latter Convention, the Slovak Government observed that States had a strong positive obligation to regulate and organise their system for the provision of health care in relation to births. This included the provision of adequate education for all health-care providers and other persons involved, supervision and enforcement of compliance with existing medical, material and human rights and other relevant standards and, within this context, the operation of a system for continuous monitoring and review of those standards. The aim should nonetheless be to ensure the protection and enjoyment of the right to life and health of the woman, as well as the child. 129. The Slovak Government were aware both of the State ’ s positive obligation to protect the life and health of the child and to provide the child with the highest attainable standard of health care, and of the associated responsibilities. In their view, it might not be possible to fulfil that obligation in the case of home births. Under the Slovakian legal regulations, health-care providers were obliged to have access to the material and technical equipment laid down in the relevant rules. Qualified midwives were entitled to assist individually in health-care institutions only in the case of a physiological delivery during which an episiotomy was required. Home births brought about risks for the mother and child which were not offset by the basic facilities available at home. 130. The Slovak Government noted that since the rate of births outside health-care institutions in the Slovak Republic amounted to 0.36% (198 births) according to the most recent data (from 2013), it was not possible to make a statistical assessment of the degree of safety of this mode of delivery. Statistics from western European countries where home birth was allowed showed that a significant proportion of such births required transport to hospital – for example, in Germany in 2013, up to 11.3% of home births had required a transfer to hospital during delivery and in 0.1% of cases the baby had been born during the transfer. 131. Moreover, most births did not proceed according to plan, and there could be unforeseeable circumstances and the possibility of an acute threat to the mother and baby ’ s health and life. It was impossible to foresee whether a pregnancy would end with a physiological birth or would require rapid intervention or emergency surgery. Birth was in all cases a dynamic process which could become complicated at any stage, with a direct threat to the life of the foetus and obviously the woman in labour. None of these complications could be resolved at home, as was attested by births with lasting consequences, either for the child or for the mother. Problems such as acute hypoxia for the child, or embolism or bleeding for the mother, could not be handled outside health-care institutions. A further trend that had been overlooked was the constantly increasing age of mothers and the complications associated with this. According to statistics issued by the National Centre for Health Information, in the Slovak Republic in 2013 6,292 newborns had required health care in specialist neonatal institutions; in other words, approximately one in every eight to nine newborn children had required specialist intensive health care. 132. Regarding the State ’ s wide margin of appreciation in the present field, the Slovak Government acknowledged that a humanised approach was preferable during birth and in the event of any changes in the circumstances of a birth, but emphasised that this was only possible in health-care institutions. It was inevitable to stress the need for protection of children ’ s rights, their chance to live and their right to health, all of which were diminished during birth outside a health-care institution. The majority of women opting for delivery in a domestic environment referred to the need for intimacy, the opportunity to select the method and position of delivery and to decline particular types of medical intervention during childbirth, the need for the presence of a person close to them, and the importance of not being separated from the child. The Slovak Government noted in this connection that the United Nations Committee for the Rights of the Child required States to support the Mother and Baby Friendly Hospital Initiative (MBFHI), whereby the WHO and UNICEF had set down the criteria for maternity and neonatal units of health-care institutions. While cooperating with the above-mentioned organisations, the Slovak Republic had since 1996 implemented quality projects for perinatal care, including support for physiological birth, a behavioural approach to nursing for newborns and mothers, support for breastfeeding, and emphasis on the inseparability of the mother/child bond. Each health-care provider should be responsible for ensuring the highest standard of humanisation of birth. Some providers had rebuilt health-care institutions in order to offer alternative methods of giving birth, for example the vertical birth position or water birth; to tailor birth arrangements to the mother ’ s request; and to provide separate rooms allowing the husband or other family members to be present during the birth and throughout the stay in the institution. Immediate contact between the mother and the newborn after delivery should be ensured in each delivery room and was a precondition for the MBFHI. From the point of view of breastfeeding support, the MBFHI was considered in the European Union to constitute a model of best practice as regards care for the mother and the newborn after delivery. Among other things, it required the newborn child, once dried, to be placed on the mother ’ s body within half an hour after delivery, and the newborn and mother to be given the opportunity to be together for breastfeeding “upon request”. 133. The Slovak Government submitted that this approach to births, which was similar to that adopted in the Czech Republic, was in line with the idea of respect and active support for women ’ s rights in connection with births. At the same time, they fully acknowledged the rights of the child deriving from international instruments, with a view to striking a balance between the interests of the mother and her child and the interest of society in preserving their health and well-being. (c) The Royal College of Midwives 134. The Royal College of Midwives stated that it was the United Kingdom ’ s only professional organisation and trade union led by midwives for midwives. Its objects were to promote and advance the art and science of midwifery and to promote the effectiveness and protect the interests of its members. 135. It had maintained a consistent position on the safety of home birth, which it considered a safe choice for women with uncomplicated pregnancies. 136. Under the current government policy, all hospitals in the United Kingdom were expected to make home birth an option, and women were entitled to self-refer to home birth services in their area. In interpreting the common law, the national courts had shifted their approach to clinical negligence to emphasise that women were responsible for making decisions about the maternity care that they received. The national midwifery regulator, the Nursing and Midwifery Council, had recognised that women could not be forced to give birth in hospital against their wishes. It had therefore been accepted that midwives had a professional duty of care to attend women who were giving birth outside hospital. 137. Home births were not expressly regulated by national law: midwives ’ capacity to provide care to women at home was an implied part of their general competence and any care they provided, regardless of the setting in which they provided it, was subject to scrutiny by the professional regulator and the general law. Rules governing the specific practicalities of home births were laid down by the appropriate regulatory body and the midwife ’ s employer. 138. The Royal College of Midwives submitted that the following consequences arose from prohibiting midwifery assistance at home birth: (i) giving birth at home without any trained assistance would give rise to risks for the health of women and babies should complications occur; (ii) as there was no regulation of the qualifications and competence of home birth attendants, women might be assisted by an untrained birth attendant who was not subject to any regulatory control; (iii) there would be a disincentive to transfer to hospital if complications arose during birth because the midwife or other attendant might be reported to the authorities; (iv) transfer to hospital in an emergency would be hindered by lack of proper referral procedures and record-keeping and the hospital would have no record of the woman ’ s obstetric history, the progress of labour or the nature of any complication; and (v) giving birth at home would become stigmatised and hospital staff would often treat women who transferred from home with suspicion and disrespect and might delay urgent care. (d) The International Study Group of the World Association of Perinatal Medicine 139. The World Association of Perinatal Medicine and the International Academy of Perinatal Medicine included in their membership scientific and clinical leaders in the medical care of pregnant women, foetal and neonatal patients. The International Study Group had begun its scientific work on planned home birth in 2013. 140. It stated that according to the results of its studies, planned home birth involved unnecessary, preventable increased risks to the newborn and the mother. A pregnant woman who continued her pregnancy to term freely assumed ethical obligations towards her foetus and soon-to-be-born child to select a site for delivery that was not unnecessarily risky. Her autonomy was therefore justifiably constrained by such ethical obligations. 141. In respect of the finding set out in the joint statement by the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives to the effect that planned home birth was a “safe option for many women”, the third-party intervener argued that this conclusion did not withstand close scrutiny for planned home birth without immediate access to hospital-based care. Such settings were unavoidably at risk for transport to hospital. Moreover, the perinatal mortality rate had been reported to be more than eight times higher when transport from home to an obstetric unit had been used. The unavoidable delay involved in even the best transport systems from home to hospital and even from labour and delivery to the operating room resulted in increased risks of mortality and morbidity for both the newborn and the mother. 142. The International Study Group mentioned the long tradition in the Netherlands of optimally organised home birth, with well-trained midwives and a transport system with short distances to hospitals. Nonetheless, 49% of primiparous and 17% of multiparous women were transported during labour. The most frequent indications were the need for pain relief and prolonged labour. 143. Planned home birth often did not satisfy its raison d ’ être, namely improved patient satisfaction. Professional responsibility required hospital physicians and midwives to take measures to improve patient satisfaction, by creating home birth-like environments that were appropriately staffed not only to ensure patient safety, which was the paramount professional responsibility, but also to ensure patient satisfaction. A pregnant woman did indeed have the right to decide and control what happened to her body during pregnancy and delivery. However, a more clinically appropriate view was that the physician or midwife had an independent obligation, as a matter of professional integrity, to protect pregnant, foetal and neonatal patients. Their role was to identify and present medically reasonable alternatives for the management of pregnancy, in other words clinical management for which there was an evidence base of net clinical benefit. 144. The patient had the right to select from among the medically reasonable alternatives. If she rejected them all and also remained a patient, then her refusal was not a simple exercise of a negative right to non-interference. Her refusal was more complex, being coupled with a positive right to the services of clinicians and the resources of health-care organisations and society. Insistence on implementing the unconstrained rights of pregnant women to control the birth location was an ethical error and therefore had no place in professional perinatal medicine. 145. In conclusion, planned home birth was not consistent with professional integrity because its increased risks were preventable by planned hospital birth. Pregnant women did not have absolute freedom to control the place of assisted birth because they had an ethical obligation towards the soon-to-be-born child to protect the child ’ s health-related interests. This obligation could not be fulfilled by planned home birth but could be fulfilled by planned hospital birth. The precautionary principle justified reducing risks for the vulnerable when the burdens of doing so were minimal. Planned hospital birth protected foetal and neonatal patients from the risks of planned home birth, from which risks they could not protect themselves. The burdens on pregnant women of planned hospital birth were minimal. Planned home birth was therefore not compatible with the precautionary principle. (e) The Czech Union of Midwives ( Unie porodních asistentek – UNIPA) 146. UNIPA stated that it was a professional organisation associating independent midwives. 147. At the outset, it described the professional organisations for midwives in the Czech Republic. Apart from UNIPA, which united midwives and midwifery university students across the Czech Republic, there was the Czech Confederation of Midwives ( Česká konfederace porodních asistentek – ČKPA), which grouped midwives into particular clusters according to region. These two organisations cooperated closely in order to develop and promote midwifery in the Czech Republic as a viable model of maternity health care. There was also the Czech Association of Midwives ( Česká společnost porodních asistentek – ČSPA), an organisation that had been established in 2014 and brought together other medical and paramedical professionals. 148. UNIPA submitted that the provision of midwife-based care had been expressly banned by law in relation to home births and that such care was also banned at midwives ’ offices and in birth centres owing to the excessive technical requirements imposed by secondary legislation. As a result of the State ’ s approach and hospitals ’ practice, midwives could not legally assist at childbirth outside hospitals. Moreover, as the State allowed only for the obstetric model of care, a midwife wishing to provide assistance at childbirth had to do so in a hospital in accordance with that model, subject to obstetric rules, with the need for prior instructions from a physician and under supervision. In such cases, the midwife also needed to be in an employment relationship with the hospital. Such a set-up inherently prevented midwives from providing midwife-based care and performing the statutory duties of a midwife. 149. UNIPA observed that out of 6,000 qualified and licensed midwives in the country, none had been awarded a technical licence authorising them to perform the full range of a midwife ’ s duties, including assistance at childbirth. Consequently, no midwives had been licensed by the State to carry out childbirth-related duties independently and without prior instructions from a physician. In addition, although from a purely legal and technical standpoint the existence of birth centres was not currently restricted, the extensive requirements in terms of technical, material and human resources effectively eliminated this option. There had in fact been one attempt to register a birth centre in Brno, but although it had been intended to be located in close proximity to a local hospital, the response of the relevant public authority had been negative. 150. Owing to the monopoly enjoyed by physicians in the field of maternity health care, the health-care system entirely failed to distinguish between primary and secondary care for mother and child. The failure to distinguish between these levels of care necessarily led to the provision of a standardised form of care for all mothers, without reflecting their particular different needs. As a result, the system failed to distinguish between spontaneous low-risk mothers whose deliveries were reasonably anticipated to be free of complications, and mothers whose pregnancies indicated the existence of pathological conditions. 151. UNIPA next drew the Court ’ s attention to the absence of any national professional standards of care in midwifery, a fact that, in particular, exposed midwives to higher risks in terms of their professional liability, in both civil and criminal matters. Referring to two examples of criminal proceedings against midwives, it maintained that although they had been found innocent, their reputation, as well as that of midwifery, had suffered irreparable damage. 152. The third-party intervener lastly contended that no viable statistical data had been collected by the State as regards practices in specific hospitals and births outside medical facilities. In the intervener ’ s opinion, this limited the choice available for prospective mothers as regards the place of childbirth. Moreover, there were no comprehensive methods for informing prospective mothers about the health care provided by public authorities in connection with childbirth. Women were therefore not aware of their various options during pregnancy and childbirth. Such information was only accessible in pre-childbirth courses that were subject to a fee. (f) The Public Defender of Rights ( Veřejná ochránkyně práv ) 153. The Public Defender of Rights (Ombudsman) stated that her role was mainly to protect persons from conduct that was either unlawful or in any way improper, and from inactivity on the part of the authorities and other public bodies (in other words, to scrutinise and inspect public administration). At the same time, the Public Defender acted as the national equality body (the national body for equal treatment and protection from discrimination) by virtue of the relevant European Union directives (no. 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and no. 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation). The Public Defender also conducted systematic visits of places where persons were restricted in their freedoms (by virtue of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and monitored forced returns or expulsions of aliens under Directive no. 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. 154. The Public Defender submitted to the Court an overview of cases referred to her, without providing any statistical data. 155. The first category of complaints concerned procedures during labour and childbirth in a medical facility, which the women in question had described as lacking in dignity and privacy. More specifically, some women had complained of certain types of intervention being performed without their consent, the obligation to pay a fee for the presence of their own doula, overcrowding in the delivery room and failure to respect their wishes regarding the opportunity to eat and drink, to move around or to opt for specific birthing positions either on or off the bed. Certain complaints also concerned the continuous monitoring of the unborn child, the mother ’ s separation from the child immediately after the birth or in the forty-eight hours following the birth, and the failure to comply with a birth plan submitted by the mother. 156. The second category of complaints examined by the Public Defender concerned the impossibility of delivery outside a medical facility with professional assistance, and the ambiguity of the legal regulations governing home births. 157. The first complaint on that account had been received by the Public Defender in 2003. The woman concerned had complained that it was impossible to deliver a baby outside a medical facility with the assistance of a midwife and that the midwife ’ s services were not reimbursed by the public health-insurance fund. The outcome of that complaint was not stated. The Public Defender noted that even though Czech law did not expressly prohibit delivery outside a medical facility, this possibility was virtually excluded by Decree no. 92/2012 of the Ministry of Health. She emphasised that the legal requirements for minimum equipment in medical facilities and home-care centres could not, in principle, be complied with in a home-delivery environment or in any other environment. She observed that delivery rooms meeting the conditions set out by the legislation were thus located exclusively in health-care facilities. The Public Defender pointed out in this connection that some mothers-to-be would have found it sufficient if the delivery in the medical facility had been performed by their “own” midwife. However, the medical facilities only allowed deliveries to be performed by midwives with whom they had concluded an agreement, and such agreements often proved impossible to obtain. 158. The third category of complaints to the Public Defender concerned administrative difficulties faced by the parents of a child born outside a health-care facility. In many cases it had been difficult to obtain a birth certificate or parental allowance. 159. Lastly, the Public Defender noted that there had been some complaints from midwives concerning the legal regulations which in practice had made it impossible to assist with and conduct a delivery outside a medical facility. C. The Court ’ s assessment 1. Applicability of Article 8 of the Convention 160. In the instant case the applicants formulated their complaint under Article 8 of the Convention and the Government did not dispute the applicability of that provision in the proceedings before the Grand Chamber. 161. The Court notes that the applicants sought to be assisted by a midwife during a home birth. The issue arising in the present case is therefore whether the right to determine the circumstances in which to give birth falls within the scope of Article 8 (see also paragraph 74 of the Chamber judgment). 162. The Grand Chamber confirms that the concept of “private life” is a broad one (see paragraph 73 of the Chamber judgment). It reiterates in this connection that in the case of Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003-III) the Court held that “birth, and in particular the circumstances in which a child is born, forms part of a child ’ s, and subsequently the adult ’ s, private life guaranteed by Article 8 of the Convention”. Moreover, in the case of Ternovszky, cited above, § 22, it held that “ the circumstances of giving birth incontestably form part of one ’ s private life for the purposes of this provision”. 163. The Court finds that while Article 8 cannot be interpreted as conferring a right to give birth at home as such, the fact that it is impossible in practice for women to be assisted when giving birth in their private home comes within the scope of their right to respect for their private life and accordingly of Article 8. Indeed, giving birth is a unique and delicate moment in a woman ’ s life. It encompasses issues of physical and moral integrity, medical care, reproductive health and the protection of health-related information. These issues, including the choice of the place of birth, are therefore fundamentally linked to the woman ’ s private life and fall within the scope of that concept for the purposes of Article 8 of the Convention. 2. Whether the case should be examined from the standpoint of the State ’ s negative or positive obligations 164. The parties disagree on whether the case should be examined in terms of an interference with the applicants ’ rights under Article 8 of the Convention or from the angle of positive obligations on the State to protect the applicants ’ rights. The central issue in this case may indeed be seen as either a curtailment of the applicants ’ right to choose the circumstances of giving birth, to be analysed as an interference with their right to respect for their private life, or as a failure on the part of the State to provide an appropriate regulatory framework securing the rights of persons in the applicants ’ situation, to be analysed in terms of the State ’ s positive duty to ensure respect for their private life (see, mutatis mutandis, Hristozov and Others, cited above, § 117 ). 165. Having regard to the nature and content of the applicants ’ complaints, the Grand Chamber considers it appropriate, as the Chamber did, to approach the present case as one involving an interference with the applicants ’ right to avail themselves of the assistance of midwives when giving birth at home, owing to the threat of sanctions for midwives, who in practice were prevented from assisting the applicants by the operation of the law. In any event, as the Court has already held, the applicable principles regarding justification under Article 8 § 2 are broadly similar regardless of analytical approaches adopted (see S.H. and Others v. Austria [GC], no. 57813/00, § 88, ECHR 2011, with further references). 166. To determine whether this interference entailed a violation of Article 8 of the Convention, the Court must examine whether it was justified under the second paragraph of that Article, that is, whether the interference was “in accordance with the law” and “necessary in a democratic society” for the pursuit of one of the “legitimate aims” specified in Article 8. 3. Was the interference “in accordance with the law”? 167. The Court reiterates that an impugned interference must have some basis in domestic law, which law must be adequately accessible and be formulated with sufficient precision to enable the citizen to regulate his or her conduct, he or she being able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see A, B and C v. Ireland, cited above, § 220, with further references). 168. In the present case it was undisputed between the parties that the domestic legal provisions providing the legal basis for the impugned interference were accessible to the applicants. The Court sees no reason to disagree with the parties on this. 169. In respect of their foreseeability, the Court first notes that giving birth at home is not as such prohibited by the Czech legal system. It further observes that the Health Care in Private Health-Care Institutions Act, which was in force when Ms Dubská gave birth to her second child in April 2011, regulated private health-care institutions and provided for sanctions for any such health-care providers who breached the Act, while not specifying the amount of the fine which could be imposed. The Act empowered the Ministry of Health to lay down technical and material requirements for equipment in health-care institutions. This was done by means of Decree no. 221/2010, which entered into force on 1 September 2010 and set out detailed conditions to be complied with in order to practise the profession of midwife independently, identifying, inter alia, three possible categories of workplaces for midwives: workplaces where delivery was not allowed, workplaces where delivery was allowed, and contact workplaces which had to be equipped with the furniture appropriate for a midwife and a mobile phone. The decree also defined the content of a midwife ’ s bag (see paragraphs 43-46 above). At the same time, the Paramedical Professions Act, which was in force at the time of both applicants ’ deliveries and is still in force, laid down the requirements for the independent practice of the profession of midwife, empowering the Ministry of Health to define the activities of midwives. This was done by means of Decree no. 424/2004, later superseded by Decree no. 55/2011, both of which stated that midwives could carry out activities on their own, such as performing physiological deliveries, including episiotomy if needed. 170. The Medical Services Act entered into force shortly before Ms Krejzová gave birth to her third child in May 2012. It repealed both the Health Care in Private Health-Care Institutions Act and Decree no. 221/2010. It specified that a person could provide health-care services only if in possession of the appropriate licence, except in special situations. The health-care institutions referred to in the licence had to be adequately equipped in respect of the services provided, as specified in a decree to be issued by the Ministry of Health. A person who provided health care otherwise than in accordance with the Act could be fined for breaching the Act which also defined a number of concrete sanctions. The essential equipment which had to be available to midwives in the places where they were to assist with deliveries was described in detail in Decree no. 92/2012, which indicated, inter alia, three different categories of workplaces for midwives, namely: workplaces where delivery was not allowed, workplaces where delivery was allowed, and contact workplaces for nursing care relating to gynaecology and childbirth (see also paragraph 82 of the Chamber judgment). 171. The Court accepts that while there might have been doubts about the clarity of certain legislative provisions in force at the relevant time, the applicants were nevertheless able – if need be with appropriate advice – to foresee to a degree that was reasonable in the circumstances that their private homes were unable to satisfy the requirements relating to the equipment listed successively in both the above-mentioned instruments of secondary legislation and that, as a consequence, the provisions in question did not permit a health professional to assist with a planned home birth. Consequently, the impugned interference was in accordance with the law. 4. Did the interference pursue a legitimate aim? 172. The Court considers, contrary to the applicants, that there are no grounds for doubting that the Czech State ’ s policy of encouraging hospital births, as reflected in the relevant national legislation, was designed to protect the health and safety of the mother and the child during and after delivery. 173. It may accordingly be said that the interference in the present case served the legitimate aim of the protection of health and of the rights of others within the meaning of Article 8 § 2 of the Convention. 5. Was the interference necessary in a democratic society? 174. An interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, mutatis mutandis, Fernández Martinez v. Spain [GC], no. 56030/07, § 124, ECHR 2014 (extracts) ). 175. In this connection, the Court reiterates the fundamentally subsidiary role of the Convention system and recognises that the national authorities have direct democratic legitimation in so far as the protection of human rights is concerned. Moreover, by reason of their direct and continuous contact with the vital forces of their countries, they are in principle better placed than an international court to evaluate local needs and conditions (see, e.g., Maurice v. France [GC], no. 11810/03, § 117, with further references, ECHR 2005-IX ). 176. It is therefore primarily the responsibility of the national authorities to make the initial assessment as to where the fair balance lies in assessing the need for an interference in the public interest with individuals ’ rights under Article 8 of the Convention. Accordingly, in adopting legislation intended to strike a balance between competing interests, States must in principle be allowed to determine the means which they consider to be best suited to achieving the aim of reconciling those interests (see Odièvre, cited above, § 49; Van Der Heijden v. the Netherlands [GC], no. 42857/05, § 56, 3 April 2012). 177. While it is for the national authorities to make the initial assessment, the final evaluation as to whether an interference in a particular case is “necessary”, as that term is to be understood within the meaning of Article 8 of the Convention, remains subject to review by the Court (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008; Van Der Heijden, cited above, § 57). 178. A certain margin of appreciation is, in principle, afforded to domestic authorities as regards that assessment; its breadth depends on a number of factors dictated by the particular case. The margin will tend to be relatively narrow where the right at stake is crucial to the individual ’ s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will also be restricted. Where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see Van der Heijden, cited above, §§ 55-60 with further references, and also Parrillo v. Italy [GC], no. 46470/11, § 169, with further references, ECHR 2015). 179. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52 with further references, ECHR 2006-VI; Shelley v. the United Kingdom (dec.), no. 23800/06; 4 January 2008; and Hristozov, cited above, § 119). 180. In the case at hand, the Court has to establish whether the fact that it was impossible in practice for the applicants to be assisted by a health professional during a home birth struck a fair balance between, on the one hand, the applicants ’ right to respect for their private life under Article 8 and, on the other, the interest of the State in protecting the health and safety of the child during and after delivery and that of the mother (see paragraph 174 above): in other words, whether or not the respondent State, by introducing legislation that did not allow in practice for such assistance, overstepped the margin of appreciation afforded to it. 181. The Government maintained that the State ’ s margin of appreciation in the present case was wide. The applicants argued that a penalising approach to home births might affect women ’ s right to life and health and that, by making home birth less safe for women, the State might be putting these rights at risk. Moreover, according to the applicants, the right of women to decide on the circumstances in which to give birth, as a mechanism compensating for their limited freedom of self-determination at that moment, did not in principle allow for any further limitations, on account of the Government ’ s margin of appreciation, which was necessarily narrow in this area. The applicants further maintained that there was a consensus among member States in respect of home births, which was supported by international expert opinion on the issues of maternal health and the importance of skilled attendants at birth. The existence of this European consensus should, in their view, lead to the Government ’ s margin of appreciation being narrowed. 182. While the question of home birth does not as such raise acutely sensitive moral and ethical issues (see, by contrast, A, B and C v. Ireland, cited above), it can be said to touch upon an important public interest in the area of public health. Moreover, the responsibility of the State in this field necessarily implies a broader boundary for the State ’ s power to lay down rules for the functioning of the health-care system, incorporating both State and private health-care institutions. In this context the Court notes that the present case involves a complex matter of health-care policy requiring an assessment by the national authorities of expert and scientific data concerning the risks of hospital and home births. In addition, general social and economic policy considerations come into play, including the allocation of financial means, since budgetary resources may need to be shifted from the general system of maternity hospitals to the provision of a framework for home births (see, mutatis mutandis, Maurice, cited above, § 84, with further references, and Stec and Others, cited above, § 52). 183. Moreover, contrary to the applicants ’ submissions, the Court finds that among the member States of the Council of Europe there is no consensus capable of narrowing the State ’ s margin of appreciation, in favour of allowing home births. In particular, the Court notes that planned home births are provided for in domestic law and regulated in twenty member States, but the right to choose this mode of delivery is never absolute and is always dependent on certain medical conditions being satisfied. In addition, national health insurance covers home birth in only fifteen of these countries. The Court further notes that home births are unregulated or under-regulated in twenty-three other countries. In some of these countries private home births do take place, but in a legal vacuum and without national health cover. Moreover, no legislation has been found which explicitly prohibits the assistance of midwives at home births. In a very small number of the member States surveyed, disciplinary or criminal sanctions are possible, but appear to be rarely imposed. 184. In the light of these considerations, the Court takes the view that the margin of appreciation to be afforded to the national authorities in the present case must be a wide one, while not being unlimited. The Court must indeed supervise whether, having regard to that margin of appreciation, the interference constitutes a proportionate balancing of the competing interests involved (see A, B and C v. Ireland, cited above, § 238, with a further reference). In cases arising from individual applications the Court ’ s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it (see S.H. and Others v. Austria, cited above, §§ 91-92, with further references). Consequently, the Court ’ s task is not to substitute its own view for that of the competent national authorities in determining the most appropriate policy for regulating matters regarding the circumstances of giving birth. Instead, it must decide on the compatibility with Article 8 of the State ’ s interference in the present case on the basis of the fair-balance test described above. 185. The applicants in the present case both expressed their wish to give birth in their private home with the assistance of a midwife. The Court accepts that as a consequence of the operation of the legislative provisions in force at the relevant time, they were put in a situation which had a serious impact on their freedom of choice: they were required, if they wished to give birth at home, to do so without the assistance of a midwife and, therefore, with the attendant risks that this posed to themselves and their newborns, or to give birth at hospital (see also paragraphs 93 and 95 of the Chamber judgment). The Court notes in this connection that while there is generally no conflict of interest between the mother and her child, certain choices made by the mother as to the place, circumstances or method of delivery may be seen to give rise to an increased risk to the health and safety of newborns, whose mortality rate, as shown in figures for perinatal and neonatal deaths, is not negligible, despite all the advances in medical care (see also paragraph 94 of the Chamber judgment). 186. In this respect, the Court notes the Government ’ s argument, supported by the Government of the Republic of Croatia and the Government of the Slovak Republic, that the risk for mothers and newborns (see paragraphs 124 and 131 above) is higher in the case of home births than in the case of births in maternity hospitals which are fully staffed and adequately equipped from a technical and material perspective, and that even if a pregnancy proceeds without any complications and can therefore be considered a “low-risk” pregnancy, unexpected difficulties can arise during the delivery which would require immediate specialist medical intervention, such as a Caesarean section or special neonatal assistance. Moreover, a maternity hospital can provide all the necessary urgent medical care, whereas this would not be possible in the case of a home birth, even with a midwife attending (see also paragraph 97 of the Chamber judgment). It is to be noted in this connection that the Czech Republic has not set up a system of specialist emergency assistance for cases of home births. Contrary to the applicants ’ argument (see paragraph 79 above), the lack of such a system would be likely to increase the potential risks for women giving birth at home and their babies. 187. It also transpires from the material before the Court that in States where home births are allowed, certain preconditions must be fulfilled: the pregnancy must be “low risk”, a qualified midwife must be present at the birth to detect any complications and transfer the woman in labour to hospital if necessary, and such a transfer must be secured in a very short period of time (see also paragraph 96 of the Chamber judgment). Accordingly, as the applicants contended, a home birth without the assistance of medical professionals may increase the risk to the life and health of both the mother and the newborn child. 188. The Court notes that the applicants could have opted, as the Government also indicated, to give birth in one of the local maternity hospitals, where their wishes would in principle have been satisfied. However, according to the applicants ’ submissions based on their own experience (see paragraphs 9 and 23 above), in a number of those hospitals the conditions in which pregnant women are admitted and provided with medical treatment and medication would appear to be questionable, and in several local hospitals the wishes of mothers-to-be do not seem to be fully respected (see also paragraph 95 of the Chamber judgment). These remarks would seem to be confirmed in substance by the Committee on the Elimination of Discrimination against Women, in its Concluding Observations on the Czech Republic issued on 22 October 2010, which expressed concern regarding the conditions for child birth and obstetric services in the Czech Republic and made a number of recommendations to the Government in this area (see paragraph 65 above; and also paragraphs 56 and 95 of the Chamber judgment). 189. In the Court ’ s opinion, these concerns cannot be disregarded when assessing whether the authorities struck a fair balance between the competing interests. At the same time, the Court acknowledges that since 2014 the Government have taken some initiatives with a view to improving the situation, notably by establishing a new governmental expert committee on the issue of obstetrics, midwifery, and related women ’ s rights. The Court also takes note of the recent statement the Czech Gynaecological and Obstetrical Society, issued in August 2015 (see paragraphs 103-104 above). Against this background, the Court finds it appropriate to invite the Czech authorities to make further progress by keeping the relevant legal provisions under constant review, so as to ensure that they reflect medical and scientific developments whilst fully respecting women ’ s rights in the field of reproductive health, notably by ensuring adequate conditions for both patients and medical staff in maternity hospitals across the country. 190. In conclusion, having regard to the State ’ s margin of appreciation (see paragraph 184 above), the Court is of the view that the interference with the applicants ’ right to respect for their private life was not disproportionate. 191. Accordingly, there has been no violation of Article 8 of the Convention. | The Grand Chamber held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the national authorities had considerable room for manoeuvre when regulating the question of home births, a matter for which there is no European consensus and which involves complex issues of health-care policy as well as allocation of State resources. In the applicants’ case, the Grand Chamber considered that the Czech Republic’s current policy struck a fair balance between, on the one hand, mothers’ right to respect for their private life and, on the other, the State’s interest in protecting the health and safety of the child and mother during and after delivery. Moreover, since 2014 the Czech Government had taken some initiatives with a view to improving the situation in local maternity hospitals, notably by setting up a new governmental expert committee on obstetrics, midwifery and related women’s rights. Lastly, the Grand Chamber invited the Czech authorities to make further progress by continuing their constant review of the relevant legal provisions on home births, making sure that they reflect medical and scientific developments whilst fully respecting women’s rights in the field of reproductive rights. |
804 | Right to a fair trial (Article 6 of the Convention) | COMPLAINTS If you are dissatisfied with the way your case is conducted you should first discuss the matter either with the external solicitor, or with your case manager. If you remain dissatisfied you may write to the Complaints Officer, Official Solicitor’s Office, 81 Chancery Lane WC2A 1DD.” 16. On 19 December 2006 Nottingham County Court directed that H.J. be instructed to prepare a second report considering the propriety of the teaching methods envisaged by the local authority in its parenting assessment. H.J.’s second report, dated 2 March 2007, noted that the teaching methods and materials would “in general be appropriate” and emphasised that simple language, direct instructions and repetition would be needed, along with immediate feedback. 17. On 2 March 2007 a parenting capacity assessment was produced in respect of R.P. The report noted that R.P. had demonstrated commitment to the assessment process and an ability to retain and carry out basic tasks. However, social workers were concerned that R.P. had expressed views of a racist nature, that she sometimes seemed immature and attention-seeking, that she was overly preoccupied with her own health concerns, and that she spoke very negatively about the local authority’s professionals. 18. Reports from R.P.’s contact sessions with K.P. indicated that R.P. showed some signs of improvement, demonstrating some ability to remember what she had been shown and to repeat tasks. However, even after months of regular contact and support R.P. still, on occasion, needed reminding about and prompting to perform basic tasks, especially when something unexpected happened. They also indicated that R.P. occasionally demonstrated a failure to put K.P.’s needs before her own and a lack of awareness of K.P.’s current and future needs. Her attitude towards social workers was also noted to be aggressive, uncooperative and occasionally violent. Consequently, there were concerns about R.P.’s ability and willingness to work with local authority professionals and put K.P.’s needs first. This was of particular concern in light of K.P.’s need for high levels of support. 19. In May 2007 H.J. was asked to produce a third report. The report, dated 2 June 2007, primarily concerned the risks posed by R.P. to K.P. and R.P.’s ability to care for K.P. H.J. was also asked to comment on R.P.’s litigation capacity. She noted: “1.1 As I have indicated previously RP has a significant learning disability, and she will always need a high level of support in caring for KP . If she were not receiving this support she would pose a high level of risk to KP’s well-being, which is not due to any desire on her part to hurt KP, but to her limitations, which are too extensive to allow her to parent KP successfully on her own. 1.2 If she were receiving a high level of support this risk could be reduced. The level of support which would be needed for this to happen would be for another competent adult to be present at all times, to prompt and assist RP in her care for KP. Essentially this means that RP would need to be living with a partner or family member who could appropriately provide this level of support. ... ... ... 2.3 Having read all the work which has been done with RP and having carefully considered my assessment of her, it is my view that there is no further work which could be undertaken with RP which would increase her ability to care for KP in any significant way. ... ... ... 7.1 As I indicated earlier RP could only care for KP if she had a high level of support. I cannot perceive anything in her circumstances which suggests to me that such a support network is available, and without this no progress can be made towards rehabilitation. ... ... ... 8.1 RP would need 24 hour support, and within this it would be realistic to expect her to assist with KP’s care but not take sole responsibility for this. This would continue to be the case throughout KP’s childhood. If this could be achieved in a natural environment, such as a family, then it might be suitable as a long term prospect, as long as KP had a consistent identified care giver within that arrangement. ... ... ... 9.1 RP does not have the capacity to give informed consent to a placement order. She cannot really understand the proceedings except at a very basic level.” 20. On 11 July 2007 the local authority completed a further core assessment. The conclusion was that: “The opinion of all the agencies involved with KP’s care in a position to make an informed decision regarding RP’s ability to parent KP is clear. Without a very high level of continuous support and supervision, RP does not have the skills to enable her to successfully parent KP. RP has consistently demonstrated by her behaviour that she does not wish to work in partnership with the agencies who will continue to be involved in KP’s care throughout her childhood. Therefore, we need to look for alternative permanent carers. Maternal grandparents have put themselves forward to be assessed and this is in the process of being conducted. However, the local authority have a number of concerns in respect of their living conditions, RP’s upbringing and the influence that RP still has upon them and how this would impact upon KP if she were to be placed in their care. Although the local authority do not wish to pre-empt the outcome of the initial sessions with the maternal grandparents, there are a number of concerns regarding their interaction and relationship with RP and their own parenting skills. The local authority at this time believe it is in KP’s best interest to be placed for adoption and the matter will come before the adoption panel on 19 July 2007. The local authority will urgently review this if the outcome of the maternal grandparents’ assessment proves positive”. 21. The local authority filed its final care plan on 12 July 2007. That care plan recommended adoption outside the family and it issued proceedings seeking a placement order under section 21 of the Children’s Act 2002. The Official Solicitor consented to act on behalf of R.P. in the placement proceedings as well as in the care proceedings. The application for a placement order was then consolidated with the care proceedings and listed for hearing before a judge. 22. On 6 August 2007 the local authority filed a kinship assessment of M.P. and B.P. The report indicated that there had been referrals to the local authority concerning M.P.’s and B.P.’s care of R.P. and A.P. It further noted that M.P. and B.P. were unable to control R.P. or manage her behaviour and that they had also intermittently displayed hostility and suspicion towards the local authority. In view of these facts, the local authority concluded that it could not support the maternal grandparents as carers for K.P. On 24 August 2007 a further kinship assessment was filed in respect of A.P. The local authority considered that he was unlikely to have the capacity fully to understand or to meet K.P.’s welfare needs and therefore could not support him as a carer. 23. In a statement to the court dated 17 August 2007, the Official Solicitor indicated that R.P. was not in a position to consent or refuse her consent to the placement order and as her litigation friend he was unable to oppose the making of the care order or the placement order. However, he also indicated R.P.’s opposition to the orders sought by the local authority, her belief that K.P. should be returned to her care or the care of her family, and her belief that the local authority had not given her a chance to acquire the skills necessary to care for K.P. 24. In a pre-hearing review R.P. agreed with S.C. and counsel that she would not give oral evidence at the hearing but that her wishes would be conveyed to the court by counsel. 25. The hearing took place on 29 August 2007. R.P. was represented throughout by experienced counsel and her views were made known to the court. At the conclusion of the hearing, the judge made a care order, dispensed with R.P.’s consent to the placement order and made a placement order. 26. R.P. applied for permission to appeal to the Court of Appeal and also made an application in the County Court to revoke the placement order. The County Court proceedings were adjourned pending the outcome of the proceedings before the Court of Appeal, which took place in March 2008. 27. The Official Solicitor was notified of the appeal proceedings. He wrote to R.P., informing her of the possibility of free legal representation through the Bar Pro Bono Unit (“the Unit”). When R.P. did not pursue this, the Official Solicitor arranged for the Unit to consider her case. Specialist counsel was appointed and made available to represent R.P. at the hearing. Although R.P. declined his services, he attended the hearing in case R.P. changed her mind. She did not change her mind and instead was assisted in the proceedings by A.P. and Mr John Hemming MP, who acted as her McKenzie friends. 28. In a statement to the Court of Appeal in advance of the hearing, the Official Solicitor set out his standard working practice. He indicated that: “If there is a conflict in the evidence relating to an adult party’s capacity to conduct the proceedings then I will not accept appointment unless or until that conflict is resolved either by the experts arriving at a consensus, or by determination of the court. I will return to this issue below. ... ... ... The solicitor, however, remains the primary point of contact for the protected party. My case worker relies on the solicitor to ensure the protected party is involved, so far as is possible, and is informed about the progression of the proceedings, and for communication of the protected party’s ascertainable views, wishes and feelings with regard to the matters at issue. Whilst the solicitor may not take instructions from the protected party I regard the maintenance of personal contact between the solicitor and the protected party during the case as important, to ensure that proper information is provided and to afford the protected party the opportunity to express any concerns about issues raised, or information provided in the proceedings. I expect any concerns raised to be properly considered and communicated to my case worker. My case worker will consider the protected party’s views and wishes on all relevant points but where those views and wishes run contrary to the legal advice received as to the management and progression of the case, it is unlikely that I will prefer the protected party’s views over that advice, as it would not be in the protected party’s interests that I do so. ... ... ... I am not necessarily involved in the investigation of capacity unless specifically directed to investigate by the court (although my staff are available to offer guidance with regard to the relevant test, if so requested). The evidence as to lack of litigation capacity may therefore be in the form of a medical or psychological report or by way of a report in the form of my standard certificate. The evidence is generally from either a psychiatrist or (in the case of learning disability or acquired brain injury) from a psychologist. In a small number of cases it will be from a general practitioner. In a minority of cases it may be from another clinical specialist such as a neurologist or geriatrician. In the alternative the court may have made a determination, on the existing evidence, that the person concerned is a ‘protected party’ within the meaning of the rules. If the evidence on capacity to conduct the proceedings is ambiguous, or conflicting, then the Divisional Manager will request further clarification from the person who has conducted the assessment, or refer back to the court for a determination of the capacity issue. If during the course of the case the solicitor advises the case worker that the protected party may have recovered capacity, the standard instructions provide that the solicitor must obtain further evidence on this point. If there is evidence that the protected party has recovered capacity, then I will make an application to the court for my discharge. It is of course always open to the protected party at any time during my appointment to apply for my discharge, if of the view that the evidence as to capacity is open to challenge. Similarly if a person comes forward as willing to act in substitution for myself, then an application may be made to substitute for me as litigation friend. My discharge or substitution as litigation friend is for the court to decide. If my case worker is informed that the protected party asserts his or her own capacity to conduct the proceedings and disputes the existing evidence, then the protected party would be invited to agree to undergo further assessment - for example, through referral to his or her general practitioner or other NHS referral. If the protected party refuses to undergo further assessment or seek further evidence, I have, of course, no power to compel this. 29. At the hearing R.P. claimed that there had been a violation of her rights under Article 6 § 1 of the Convention because, inter alia, she had not been informed that the Official Solicitor would be representing her until after the hearing; the involvement of the Official Solicitor was unlawful as she had the capacity to instruct her own solicitor; the clinical psychologist had failed to apply the correct test in assessing capacity, namely the test identified in the Court of Appeal decision of Masterman-Lister ( Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70); and finally, if she lacked capacity, a family member should have been appointed as her litigation friend. 30. In a judgment dated 8 May 2008, the court found that R.P. was fully informed of the involvement of the Official Solicitor and the nature of his role; the clinical psychologist correctly assessed R.P.’s capacity by reference to the Masterman-Lister test, and R.P.’s family members would not have been suitable litigation friends as they had also put themselves forward as carers for K.P. With regard to the merits of R.P.’s case, the court found that the local authority had done what it could to facilitate the return of K.P. to R.P.’s care and had not simply dismissed this possibility out of hand. The available evidence indicated, however, that R.P.’s significant learning disability prevented her from acquiring the necessary skills to provide K.P. with the care that she needed and this was exacerbated by her increasing unwillingness to co-operate with social workers. The court therefore concluded that the Official Solicitor was right to concede that the care and placement orders were in K.P.’s best interests and the judge was right to make the orders. Accordingly, it held that there had been no violation of R.P.’s rights under Article 6 § 1 of the Convention. 31. R.P. applied for leave to appeal to the House of Lords but leave was refused on 22 July 2008. 32. While the Court of Appeal proceedings were ongoing, R.P. issued an application for leave to apply to revoke the contact order. The application was refused on 7 August 2008 and on 22 October 2008 she was refused leave to appeal to the Court of Appeal. 33. On 19 August 2008 R.P. issued an application for more frequent contact with K.P. On receiving notice of the application, the Official Solicitor wrote to the court to say that the question of R.P.’s capacity needed to be decided in the context of the contact application. At a hearing on 27 January 2009, an expert report was produced which indicated that R.P. had capacity in relation to the contact proceedings. However, on 15 May 2009 the application for contact orders was refused and R.P. was refused leave to appeal. In addition, a further application for leave to revoke the placement order was refused and the court ordered that in future R.P. could only apply for leave to revoke the placement order if she could put forward a change of circumstances since the date of the decision. 34. On 23 June 2009 R.P. applied for permission to appeal the refusal to grant her leave to apply to revoke the placement order. Permission was refused on 8 October 2009. On 24 June 2009 she issued an application for permission to proceed with a claim for judicial review, pleading that the local authority was acting unlawfully and unreasonably by proceeding with plans for the adoption of K.P. whilst proceedings were pending before the European Court of Human Rights. Permission was refused on 12 August 2009. On 7 December 2009 R.P. made a further claim for judicial review in respect of the adoption plan but permission was refused on 14 January 2011. 35. R.P. subsequently made a further application for leave to apply to discharge the placement order. On 10 February 2010 the application for leave was refused and R.P. was refused permission to appeal. In the context of those proceedings, the judge noted that “the mother has a sufficient grasp of what she wants to achieve to put forward her case with assistance so that imposing upon her a litigation friend would be quite inappropriate”. 36. On 1 March 2010 K.P. was placed with prospective adopters, who submitted an application for an adoption order in November 2010. An adoption order was granted by the County Court on 14 April 2011 and R.P.’s request for leave to appeal was refused by the High Court. R.P. has subsequently lodged an application for leave to appeal to the Court of Appeal out of time. That application was dismissed on 15 December 2011. II. RELEVANT DOMESTIC LAW AND PRACTICE 37. Section 31 of the Children Act 1989 provides for the making of care and supervision orders: “(1) On the application of any local authority or authorised person, the court may make an order— (a) placing the child with respect to whom the application is made in the care of a designated local authority; or (b) putting him under the supervision of a designated local authority or of a probation officer. (2) A court may only make a care order or supervision order if it is satisfied— (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to— (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control.” 38. The Adoption and Children Act 2002 provides for the making of placement orders: “21 Placement Orders (1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority. (2) The court may not make a placement order in respect of a child unless— (a) the child is subject to a care order, (b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or (c) the child has no parent or guardian. (3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied— (a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or (b) that the parent’s or guardian’s consent should be dispensed with. ... ... ... 52 Parental etc. consent (1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that— (a) the parent or guardian cannot be found or is incapable of giving consent, or (b) the welfare of the child requires the consent to be dispensed with.” 39. In England and Wales the Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. He is currently appointed by the Lord Chancellor under section 90 of the Supreme Court Act 1981. 40. The Official Solicitor generally becomes involved in litigation because he is invited to do so. It is a matter for his discretion whether he consents to act and he cannot be compelled to act. If he consents to act, he may become involved in proceedings as a “litigation friend”. However, the Practice Direction accompanying Part 7 of the Family Procedure (Adoption) Rules 1991 (“FPR”) provides that the duty of a litigation friend is: “fairly and competently to conduct proceedings on behalf of the non-subject child or protected party” and that: “... all steps and decisions he takes in the proceedings must be taken for the benefit of the non-subject child or the protected party”. 41. Rule 21.1 defines a “protected party” as “a party, or an intended party, who lacks capacity to conduct the proceedings”. “Lacks capacity” is defined by reference to the Mental Capacity Act 2005: “2 People who lack capacity (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. ... ... ... 3 Inability to make decisions (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of— (a) deciding one way or another, or (b) failing to make the decision.” 42. The leading judgment on the issue of litigation capacity is that of the Court of Appeal in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70. In his judgment, Chadwick LJ noted: “The authorities are unanimous in support of two broad propositions. First, that mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of the transaction involved when it is explained. ... ... ... For the purposes of CPR Part 21, the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedure should require the imposition of a next friend or guardian ad litem (or, as such person is now described in the Civil Procedure Rules, a litigation friend). ... ... ... ... a person should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language; and that he should not be regarded as unable to make a rational decision merely because the decision which he does in fact make is a decision which would not be made by a person of ordinary prudence.” III. INTERNATIONAL LAW AND PRACTICE 43. The United Nations Convention on the Rights of Persons with Disabilities provides as follows: “Article 1 - Purpose The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. ... ... ... Article 5 - Equality and non-discrimination 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention. ... ... ... Article 12 - Equal recognition before the law 1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. ... ... ... Article 13 - Access to justice 1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff. ... ... ... Article 23 - Respect for home and the family 1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that: a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized; b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided; c) Persons with disabilities, including children, retain their fertility on an equal basis with others. 2. States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities. 3. States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families. 4. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents. 5. States Parties shall, where the immediate family is unable to care for a child with disabilities, undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 44. The applicants complained that the appointment of the Official Solicitor to act as R.P.’s litigation friend violated their rights under Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 45. The Government contested that argument. A. Admissibility 46. The Court notes that R.P.’s complaint under Article 6 § 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor is it inadmissible on any other ground. Consequently, it must be declared admissible. 47. However, the Court observes that A.P., M.P. and B.P., who were K.P.’s uncle and maternal grandparents, did not have parental rights in respect of her and, as a consequence, they were not parties to the care proceedings. Therefore, although A.P., M.P. and B.P. played an active role in supporting R.P. during the care proceedings, it could not be said that those proceedings involved the determination of their civil rights and obligations ( McMichael v. the United Kingdom, 24 February 1995, § 77, Series A no. 307 ‑ B). Consequently, the Court does not consider that A.P., M.P. or B.P. can claim to be victims of a violation of Article 6 § 1 of the Convention. Although the Government have not raised an objection on this ground, the Court notes that an objection on the ground of victim status is an objection which goes to the Court’s jurisdiction and, as such, the Court is not estopped from raising it of its own motion (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006 ‑ III). B. Merits 1. The first applicant’s submissions 48. R.P. submitted that Article 6 § 1 has been violated because the decision on whether or nor she had litigation capacity was not fully tested by a court and she did not have a full opportunity to challenge that decision. In particular, she submitted that once S.C. received H.J.’s report, she should have either advised her to seek separate legal advice or advised her that she could challenge the report, and that public funding should have been made available to enable her to pursue either of these options. In reality, however, no-one explained to R.P. the implications of the Official Solicitor being instructed or that she could challenge H.J.’s findings as to her litigation capacity. Although the Official Solicitor wrote her a letter, she was unlikely to have understood the subtleties of it. The procedure adopted was therefore palpably inadequate and the methods adopted were not appropriate to explain the critical issues to someone in R.P.’s position. 49. Moreover, R.P. submitted that the procedural defects in the assessment of litigation capacity were exacerbated by the dual role of her solicitor. In particular, she argued that S.C. should not have acted on behalf of the Official Solicitor while she was not agreeing with H.J.’s views on her capacity and was not receiving separate legal advice. Finally, she submitted that there should have been a formal process by which the issue of litigation capacity was regularly reviewed by the courts and she should have been advised that she could ask the court to reconsider the issue. 50. Finally, R.P. submitted that there was an inherent conflict in the role of the Official Solicitor, who appeared to have assumed that his role was primarily to consider the best interests of K.P. As a consequence, no-one was advocating on behalf of R.P., who was thus deprived of an opportunity to advance her case before the domestic courts. 2. The Government’s submissions 51. The Government rejected the first applicant’s suggestion that her litigation capacity should have been tested adversarially in court. They submitted that as judges started from a presumption that a party had capacity, and that presumption was only displaced after the court had assessed the evidence carefully, even where a court was not asked to adjudicate a contested issue of litigation capacity it would still require medical (and possibly other) evidence before proceeding on the basis that a party lacked such capacity. Thus, the approach of the courts ensured that capacity was not removed without safeguards. 52. In any case, H.J.’s report had been clear on the question of capacity and R.P. had been fully apprised of the report’s findings. Nevertheless, the first indication she gave of wanting to challenge the Official Solicitor’s appointment was on 27 August 2007, two days before the final hearing and some ten months after his appointment. There was therefore no reason why the court should have been expected to embark on an investigation of capacity: the question had appeared to be uncontentious and to require such an unnecessary formal process would have risked delaying the care proceedings and damaging the welfare of the child. 53. The Government further submitted that S.C. had acted entirely properly throughout the proceedings. It would have been unrealistic to have expected S.C. to advise R.P. to seek either a second opinion or separate legal advice as she had fully explained H.J.’s report to R.P., who had given no indication that she disagreed with the conclusions. However, even if S.C. had not acted entirely properly, the United Kingdom had done all that was required of it to discharge its obligations to her under the Convention. First, they had in place detailed and comprehensive rules to regulate the conduct of private solicitors (the “Solicitors’ Code of Conduct”); secondly, the Official Solicitor issued comprehensive standard instructions to solicitors instructed by him in care and placement proceedings, explicitly reminding them of the need to keep the protected party informed and to keep in mind the issue of his or her litigation capacity; and thirdly, they had in place a scheme of public funding to obtain evidence in relation to litigation capacity and to fund advice for, and representation of, parents in care and placement proceedings. Therefore, the Government submitted that insofar as Article 6 § 1 imposed positive obligations on the United Kingdom to secure R.P.’s rights, the United Kingdom had fulfilled those obligations. R.P. had, at the State’s expense, the solicitor of her choice who was regulated by a State-imposed professional code that obliged her to act in R.P.’s best interests, to explain to R.P. the issues and to keep R.P. up-to-date on the progress of her case. 54. The Government further submitted that a system for automatic periodic review would be unnecessary and inappropriate in the context of care and placement proceedings, where the child’s welfare was likely to be harmed by any delay. It was also in the protected party’s best interests to be able to raise the issue of capacity at any appropriate point. 55. While the Government agreed that the role of a litigation friend was to act in the protected party’s best interests, they argued that when the protected party was a parent it was not sensible or realistic to expect the Official Solicitor to ignore the welfare of the child as this was the touchstone by which the courts would assess the case under domestic law. Moreover, it would be artificial to draw an absolute distinction between the welfare of the parent and that of the child where care and placement orders were concerned as the welfare of the child constituted an element of the welfare of the protected party. In addition, the Government noted that it was open to any parent not represented by a litigation friend to concede that the “threshold criteria” had been met or to agree to the local authority’s care plan. It should therefore be open to the litigation friend to do the same, otherwise loss of litigation capacity would mean loss of the ability to concede a case where an ordinary litigant would reasonably do so. Thus, it was not unreasonable of the Official Solicitor, in deciding what was in R.P.’s best interests, to bear in mind the test that the court would be applying and not completely ignore the welfare and interests of K.P. 56. In any case, the Government submitted that it would not necessarily be open to a parent with litigation capacity to put forward any case they wished. A responsible representative would advise the parent on the merits and, if he or she chose to ignore that advice, the representative would be bound by the rules of professional conduct to withdraw and the court would then most likely exercise its case management powers to limit the presentation of irrelevant or unarguable matters. 57. The Government also stressed that the Official Solicitor took all appropriate measures to ensure that the court was aware of the wishes of R.P. However, it would have been inappropriate for him to have advanced her position more vigorously, or to have argued that which was not reasonably arguable. Acting in R.P.’s best interests did not entail advancing whatever case R.P. wanted to advance, however unarguable. 58. Finally, the Government submitted that any criticism of the use of jointly instructed experts was misplaced. As local authorities in care and placement order proceedings did not have a vested interest in persuading courts to find that parents lacked capacity, no conflict of interest could arise. Moreover, experts owed a duty to the court and not to the party instructing them and in family proceedings they could only be instructed with the permission of the court, which would first be informed of their discipline, qualifications and expertise. In the present case S.C., R.P.’s own solicitor, selected H.J. and took primary responsibility for preparing her instruction. Consequently, no criticism could be made of the parties’ and the court’s decision to determine R.P.’s capacity by reference to H.J.’s reports. 3. The submissions of the Third Party intervener 59. The Equality and Human Rights Commission (“the Commission”) submitted that learning-disabled parents in the United Kingdom were more likely to have their children removed from their care than other parents and frequently did not receive the support which they needed in order to retain custody of their children. Consequently, decisions about the removal of children from learning-disabled parents required very close scrutiny of the support offered to the parents. 60. The Commission further submitted that Articles 6, 8 or 14 could be breached if limitations were placed on a learning-disabled litigant’s right of access to a court which were not strictly necessary, or if a litigation friend did not take sufficient positive steps to ensure that the specific needs and interests of such a parent were properly taken into account. In particular, it was important that strong procedural safeguards existed to ensure that the parent’s views were properly, fully and fairly advanced before the court. In order for this to be the case, it was essential that decisions about the parent’s litigation capacity should not be taken on the basis of a joint report part-funded by an opposing party in family litigation; that the question of capacity be kept open, with a formal institutional/legal mechanism for it to be challenged by the learning-disabled person and reviewed if any evidence suggested it could be wrong or that the position had changed; and that the case put forward by the Official Solicitor or other litigation friend should be focused solely on the needs of the parent. 4. The Court’s assessment 61. The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32 and Steel and Morris v. the United Kingdom, no. 68416/01, § 59, ECHR 2005 ‑ II). 62. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal-aid scheme constitutes one of those means but there are others, such as for example simplifying the applicable procedure (see Airey v. Ireland, cited above, pp. 14-16, § 26; and McVicar v. the United Kingdom, no. 46311/99, § 50, ECHR 2002 ‑ III). 63. However, the Court recalls that the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access "by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals" ( Golder v. the United Kingdom, 21 February 1975, § 19, quoting the" Belgian Linguistic" judgment of 23 July 1968, Series A no. 6, p. 32, para. 5). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field ( Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, p. 24, para. 57). 64. Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see the above-mentioned Golder and "Belgian Linguistic" judgments, ibid., and also Winterwerp v. the Netherlands, 24 October 1979, §§ 60 and 75, Series A no. 33). Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. 65. In cases involving those with disabilities the Court has permitted the domestic courts a certain margin of appreciation to enable them to make the relevant procedural arrangements to secure the good administration of justice and protect the health of the person concerned (see, for example, Shtukaturov v. Russia, no. 44009/05, § 68, 27 March 2008). This is in keeping with the United Nations Convention on the Rights of Persons with Disabilities, which requires States to provide appropriate accommodation to facilitate the role of disabled persons in legal proceedings. However, the Court has held that such measures should not affect the very essence of an applicant’s right to a fair trial as guaranteed by Article 6 § 1 of the Convention. In assessing whether or not a particular measure was necessary, the Court will take into account all relevant factors, including the nature and complexity of the issue before the domestic courts and what was at stake for the applicant (see, for example, Shtukaturov v. Russia, cited above, § 68). 66. It is clear that in the present case the proceedings were of the utmost importance to R.P., who stood to lose both custody of and access to her only child. Moreover, while the issue at stake was relatively straightforward – whether or not R.P. had the skills necessary to enable her successfully to parent K.P. – the evidence which would have to be considered before the issue could be addressed was not. In particular, the Court notes the significant quantity of expert reports, including expert medical and psychiatric reports, parenting assessment reports, and reports from contact sessions and observes the obvious difficulty an applicant with a learning disability would have in understanding both the content of these reports and the implications of the experts’ findings. 67. In light of the above, and bearing in mind the requirement in the UN Convention that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, the Court considers that it was not only appropriate but also necessary for the United Kingdom to take measures to ensure that R.P.’s best interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the Court considers that a failure to take measures to protect R.P.’s interests might in itself have amounted to a violation of Article 6 § 1 of the Convention (see, mutatis mutandis, T. v. the United Kingdom [GC], no. 24724/94, §§ 79 - 89, 16 December 1999). 68. It falls to the Court to consider whether the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court. In making this assessment, the Court will bear in mind the margin of appreciation afforded to Contracting States in making the necessary procedural arrangements to protect persons who lack litigation capacity ( Shtukaturov v. Russia, cited above, § 68). 69. With regard to the appointment of the Official Solicitor, the Court observes that he was only invited to act following the commissioning of an expert report by a consultant clinical psychologist. In assessing R.P., the psychologist applied the test set out in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70, namely whether R.P. was capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which her consent or decision was likely to be necessary in the course of the proceedings. She concluded that R.P. would find it very difficult to understand the advice given by her solicitor and would not be able to make informed decisions on the basis of that advice, particularly when it involved anticipating possible outcomes. The psychologist produced two more reports in the course of the proceedings, the second of which contained a further assessment of R.P.’s litigation capacity. In that report she noted that R.P. did not have the capacity to give informed consent to a placement order as she could not really understand the proceedings, except at a very basic level. The Court is satisfied that the decision to appoint the Official Solicitor was not taken lightly. Rather, it was taken only after R.P. had been thoroughly assessed by a consultant clinical psychologist and, while there was no formal review procedure, in practice further assessments were made of R.P.’s litigation capacity in the course of the proceedings. 70. The Court considers that in order to safeguard R.P.’s rights under Article 6 § 1 of the Convention, it was imperative that a means existed whereby it was possible for her to challenge the Official Solicitor’s appointment or the continuing need for his services. In this regard, the Court observes that the letter and leaflet which the Official Solicitor sent to R.P. informed her that if she was unhappy with the way her case was being conducted, she could speak to either S.C. or to the Official Solicitor, or she could contact a Complaint’s Officer. Moreover, in his statement to the Court of Appeal the Official Solicitor indicated that R.P. could have applied to the court at any time to have him discharged. Alternatively, he indicated that if it had come to his attention that R.P. was asserting capacity, then he would have invited her to undergo further assessment. While the Court observes that these procedures fall short of a formal right of appeal, in view of the finding that R.P. lacked litigation capacity, it considers that they would have afforded her an appropriate and effective means by which to challenge the appointment or the continued need for the appointment of the Official Solicitor. 71. The Court does not consider that it would have been appropriate for the domestic courts to have carried out periodic reviews of R.P.’s litigation capacity, as such reviews would have caused unnecessary delay and would therefore have been prejudicial to the welfare of K.P. In any event, as noted above (see paragraph 69), assessments were in fact carried out of R.P.’s litigation capacity in the course of the proceedings. The Court would also reject R.P.’s assertion that she should have been encouraged to seek separate legal advice at this juncture. In view of the fact that she had been found to lack the capacity to instruct a solicitor the Court does not consider that this would have been a necessary or even an effective means by which to protect her interests. 72. As stated in paragraph 61 above, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective and this is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial ( Airey v. Ireland, cited above, § 24). Consequently, any means of challenging the appointment of the Official Solicitor, however effective in theory, will only be effective in practice and thus satisfy the requirements of Article 6 § 1 of the Convention if the fact of his appointment, the implications of his appointment, the existence of a means of challenging his appointment and the procedure for exercising it are clearly explained to the protected person in language appropriate to his or her level of understanding. 73. In this regard, the Court recalls that the letter sent to R.P. indicated that the Official Solicitor would act as her guardian ad litem and would instruct her solicitor for her. It further indicated that S.C. would tell the Official Solicitor how R.P. felt about things and that he would consider her wishes and views before he filed a statement on her behalf. He would do his best to protect her interests but also had to bear in mind what was best for K.P. The leaflet accompanying the letter informed R.P. that the Official Solicitor made decisions about court cases, such as whether to bring, defend or settle a claim. Under the heading “Will the client be consulted” R.P. was informed that “the instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager”. If she was dissatisfied with the way her case was being conducted, she was informed that she should discuss the matter either with S.C. or the Official Solicitor’s Office. If she remained dissatisfied she could write to the Complaint’s Officer. While the Court accepts that R.P. might not have fully understood, on the basis of this information alone, that the Official Solicitor could consent to the making of a placement order regardless of her own personal wishes, it cannot ignore the fact that she was at all times represented by S.C. and experienced counsel who should have, and by all accounts did, explain to her the exact role of the Official Solicitor and the implications of his appointment. Indeed, in this regard the Court recalls that S.C.’s conduct of the case was commended by the Court of Appeal which found, in its judgment of 8 May 2008, that R.P. had been fully informed of the involvement of the Official Solicitor and the nature of his role. Nevertheless, she did not seek to complain until ten months after his appointment and two days before the final hearing. 74. Consequently, the Court considers that adequate safeguards were in place to ensure that the nature of the proceedings was fully explained to the applicant and, had she sought to challenge the appointment of the Official Solicitor, procedures were in place to enable her to do so (cf. Stanev v. Bulgaria, [GC], no. 36760/06, 17 January 2012, where no direct access to court was open to the applicant to have his status as a partially incapacitated person reviewed by a court). 75. With regard to the role of the Official Solicitor in the legal proceedings, the Court recalls that he was to act “for the benefit of the protected party”. The Court has taken note of R.P.’s concerns about his focus in the present case on “what was best for K.P.”. However, the Court accepts that the best interests of K.P. were the touchstone by which the domestic courts would assess the case. Thus, in determining whether a case was arguable or not, it was necessary for the Official Solicitor to consider what was in K.P.’s best interests. Consequently, the Court does not consider that the fact the Official Solicitor “bore in mind” what was best for K.P. in deciding how to act amounted to a violation of R.P.’s rights under Article 6 § 1 of the Convention. 76. Moreover, the Court does not consider that “acting in R.P.’s best interests” required the Official Solicitor to advance any argument R.P. wished. On the contrary, it would not have been in R.P.’s – or in any party’s – best interests for the Official Solicitor to have delayed proceedings by advancing an unarguable case. Nevertheless, in view of what was at stake for R.P., the Court considers that in order to safeguard her rights under Article 6 § 1 of the Convention, it was imperative that her views regarding K.P.’s future be made known to the domestic court. It is clear that this did, in fact, occur as R.P.’s views were referenced both by the Official Solicitor in his statement to the court and by R.P.’s counsel at the hearing itself. 77. Moreover, the Court recalls that R.P. was able to appeal to the Court of Appeal. Although she was not legally represented in the appeal proceedings, this was through choice as she refused the assistance of pro bono counsel which the Official Solicitor had secured for her. Nevertheless, the Court notes that in the course of the appeal proceedings she was afforded ample opportunity to put her views before the court, and her arguments were fully addressed in the court’s judgment. 78. Consequently, the Court does not consider that the very essence of R.P.’s right of access to a court was impaired. The Court therefore finds that there has been no violation of her rights under Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 79. The first applicant complained of a violation of Article 8 of the Convention as she did not have an opportunity to challenge the decision to remove K.P. from her care. The first, second, third and fourth applicants’ further complained that the removal of K.P. from R.P.’s care violated their right to respect for their family life under Article 8 of the Convention. 80. Article 8 of the Convention provides that: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 81. The Court notes that the first applicant’s complaint is linked to the one examined above and must therefore be declared admissible. However, having regard to the finding relating to Article 6 § 1 (see paragraph 78, above), it considers that there is no need to examine the complaint separately under Article 8 of the Convention. 82. Although the Court accepts that the removal of K.P. from R.P.’s care interfered with the applicants’ right to respect for their family life, it considers that the interference was both in accordance with the law and in pursuit of a legitimate aim, namely the protection of K.P. from harm. Moreover, in view of the overwhelming evidence indicating that none of the applicants had the ability adequately to care for K.P., even with the support of the local authority, the Court accepts that the interference was necessary to protect K.P. from harm. 83. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 84. The first applicant complained that Article 13 had been violated because she was unable to challenge the appointment of the Official Solicitor. 85. The Court notes that the R.P. was found to be lacking in capacity to be a party to the legal proceedings pursuant to the test set out in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70. Accordingly, it would not have been open to her to bring separate legal proceedings to challenge the appointment of the Official Solicitor. In any event, the Court has accepted, in its findings under Article 6 § 1 of the Convention, that it was at all times open to R.P. to seek the discharge of the Official Solicitor, either through an application to the court or, perhaps more appropriately, through a complaint to the Official Solicitor’s Office (see paragraph 70). 86. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 87. The first applicant complained under Article 14, read in conjunction with Articles 6 § 1 and 8 of the Convention, that she was denied the right to challenge the removal of K.P. from her care on account of her disability. 88. Article 14 provides that: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 89. The Court has accepted that it was necessary for the Contracting State to take measures to protect litigants in R.P.’s situation and that the Official Solicitor scheme was within the United Kingdom’s margin of appreciation (see paragraph 67, above). Consequently, although the Court accepts that the first applicant was treated differently from someone with legal capacity, it finds that her situation was significantly different from such a person and the difference in treatment was objectively and reasonably justified (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV). 90. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. | The Court reiterated that, given the importance of the proceedings to the first applicant – who stood to lose both custody of and access to her only child – and bearing in mind the requirement in the United Nations Convention on the Rights of Persons with Disabilities8 that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, measures to ensure that her best interests were represented were not only appropriate but also necessary. Observing that, in the present case, the appointment of the Official Solicitor to represent the applicant had been proportionate to the legitimate aim pursued and, in particular, that it had not been taken lightly and that procedures were in place that would have afforded the applicant an appropriate and effective means by which to challenge it at any time, the Court found that the very essence of the first applicant’s right of access to a court had not been impaired. It therefore held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention. |
1,022 | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | THE LAW 1. Whereas it has been established that G.R. Lawless was arrested by the Irish authorities on 11th July 1957 under sections 21 and 30 of the Offences against the State Act (1939) No. 13; that on 13th July 1957, before the expiry for the order for arrest made under Act No. 13 of 1939, G.R. Lawless was handed a copy of a detention order made on 12th July 1957 by the Minister of Justice under section 4 of the Offences against the State (Amendment) Act 1940; and that he was subsequently detained, first in the military prison in the Curragh and then in the Curragh Internment Camp, until his release on 11th December 1957 without having been brought before a judge during that period; 2. Whereas the Court is not called upon to decide on the arrest of G.R. Lawless on 11th July 1957, but only, in the light of the submissions put forward both by the Commission and by the Irish Government, whether or not the detention of G.R. Lawless from 13th July to 11th December 1957 under section 4 of the Offences against the State (Amendment) Act, 1940, complied with the stipulations of the Convention; 3. Whereas, in this connection the Irish Government has put in against the Application of G.R. Lawless a plea in bar as to the merits derived from Article 17 (art. 17) of the Convention; whereas this plea in bar should be examined first; As to the plea in bar derived from Article 17 (art. 17) of the Convention. 4. Whereas Article 17 (art. 17) of the Convention provides as follows: "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention". 5. Whereas the Irish Government submitted to the Commission and reaffirmed before the Court (i) that G.R. Lawless, at the time of his arrest in July 1957, was engaged in IRA activities; (ii) that the Commission, in paragraph 138 of its Report, had already observed that his conduct was "such as to draw upon the Applicant the gravest suspicion that, whether or not he was any longer a member, he was still concerned with the activities of the IRA at the time of his arrest in July 1957"; (iii) that the IRA was banned on account of its activity aimed at the destruction of the rights and freedoms set forth in the Convention; that, in July 1957, G.R. Lawless was thus concerned in activities falling within the terms of Article 17 (art. 17) of the Convention; that he therefore no longer had a right to rely on Articles 5, 6, 7 (art. 5, art. 6, art. 7) or any other Article of the Convention; that no State, group or person engaged in activities falling within the terms of Article 17 (art. 17) of the Convention may rely on any of the provisions of the Convention; that this construction was supported by the Commission's decision on the admissibility of the Application submitted to it in 1957 by the German Communist Party; that, however, where Article 17 (art. 17) is applied, a Government is not released from its obligation towards other Contracting Parties to ensure that its conduct continues to comply with the provisions of the Convention; 6. Whereas the Commission, in the Report and in the course of the written pleadings and oral hearings before the Court, expressed the view that Article 17 (art. 17) is not applicable in the present case; whereas the submissions of the Commission on this point may be summarised as follows: that the general purpose of Article 17 (art. 17) is to prevent totalitarian groups from exploiting in their own interest the principles enunciated by the Convention; but that to achieve that purpose it is not necessary to take away every one of the rights and freedoms guaranteed in the Convention from persons found to be engaged in activities aimed at the destruction of any of those rights and freedoms; that Article 17 (art. 17) covers essentially those rights which, if invoked, would facilitate the attempt to derive therefrom a right to engage personally in activities aimed at the destruction of "any of the rights and freedoms set forth in the Convention"; that the decision on the admissibility of the Application submitted by the German Communist Party (Application No. 250/57) was perfectly consistent with this construction of Article 17 (art. 17); that there could be no question, in connection with that Application, of the rights set forth in Articles 9, 10 and 11 (art. 9, art. 10, art. 11) of the Convention, since those rights, if extended to the Communist Party, would have enabled it to engage in the very activities referred to in Article 17 (art. 17); Whereas, in the present case, the Commission was of the opinion that, even if G. R. Lawless was personally engaged in IRA activities at the time of his arrest, Article 17 (art. 17) did not preclude him from claiming the protection of Articles 5 and 6 (art. 5, art. 6) of the Convention nor absolve the Irish Government from observing the provisions of those Articles, which protect every person against arbitrary arrest and detention without trial; 7. Whereas in the opinion of the Court the purpose of Article 17 (art. 17), insofar as it refers to groups or to individuals, is to make it impossible for them to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention; whereas, therefore, no person may be able to take advantage of the provisions of the Convention to perform acts aimed at destroying the aforesaid rights and freedoms; whereas this provision which is negative in scope cannot be construed a contrario as depriving a physical person of the fundamental individual rights guaranteed by Articles 5 and 6 (art. 5, art. 6) of the Convention; whereas, in the present instance G.R. Lawless has not relied on the Convention in order to justify or perform acts contrary to the rights and freedoms recognised therein but has complained of having been deprived of the guarantees granted in Articles 5 and 6 (art. 5, art. 6) of the Convention; whereas, accordingly, the Court cannot, on this ground, accept the submissions of the Irish Government. As to whether the detention of G.R. Lawless without trial from 13th July to 11th December 1957 under Section 4 of the Offences against the State (Amendment) Act 1940, conflicted with the Irish Government's obligations under Articles 5 and 6 (art. 5, art. 6) of the Convention. 8. Whereas Article 5 (art. 5) of the Convention reads as follows: "(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision of his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. (2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. (3) Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation." 9. Whereas the Commission, in its Report, expressed the opinion that the detention of G.R. Lawless did not fall within any of the categories of cases listed in Article 5, paragraph 1 (art. 5-1) of the Convention and hence was not a measure deprivative of liberty which was authorised by the said clause; whereas it is stated in that opinion that under Article 5, paragraph 1 (art. 5-1), deprivation of liberty is authorised in six separate categories of cases of which only those referred to in sub- paragraphs (b) (art. 5-1-b) in fine ("in order to secure the fulfilment of any obligation prescribed by law ") and (c) (art. 5-1-c) of the said paragraph come into consideration in the present instance, the Irish Government having invoked each of those sub- paragraphs before the Commission as justifying the detention of G.R. Lawless; that, with regard to Article 5, paragraph 1 (b) (art. 5-1-b) in fine, the detention of Lawless by order of a Minister of State on suspicion of being engaged in activities prejudicial to the preservation of public peace and order or to the security of the State cannot be deemed to be a measure taken "in order to secure the fulfilment of any obligation prescribed by law ", since that clause does not contemplate arrest or detention for the prevention of offences against public peace and public order or against the security of the State but for securing the execution of specific obligations imposed by law; That, moreover, according to the Commission, the detention of G. R. Lawless is not covered by Article 5, paragraph 1 (c) (art. 5-1-c), since he was not brought before the competent judicial authority during the period under review; that paragraph 1 (c) (art. 5-1-c) authorises the arrest or detention of a person on suspicion of being engaged in criminal activities only when it is effected for the purpose of bringing him before the competent judicial authority; that the Commission has particularly pointed out in this connexion that both the English and French versions of the said clause make it clear that the words "effected for the purpose of bringing him before the competent judicial authority" apply not only to the case of a person arrested or detained on "reasonable suspicion of having committed an offence" but also to the case of a person arrested or detained "when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so"; that, furthermore, the presence of a comma in the French version after the words" s'il a été arrêté et détenu en vue d'être conduit devant l'autorité judiciaire compétente" means that this passage qualifies all the categories of arrest and detention mentioned after the comma; that in addition, paragraph 1 (c) of Article 5 (art. 5-1-c) has to be read in conjunction with paragraph 3 of the same Article (art. 5-3) whereby everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of the said Article (art. 5-1-c) shall be brought promptly before a judge; that it is hereby confirmed that Article 5, paragraph 1 (c) (art. 5-1-c), allows the arrest or detention of a person effected solely for the purpose of bringing him before a judge; Whereas the Commission has expressed no opinion on whether or not the detention of G.R. Lawless was consistent with the provisions of Article 6 (art. 6) of the Convention; 10. Whereas the Irish Government have contended before the Court: - that the detention from 13th July to 11th December 1957 of G.R. Lawless whose general conduct together with a number of specific circumstances drew upon him, in the opinion of the Commission itself (paragraph 138 of its Report), "the gravest suspicion that he was concerned with the activities of the IRA" at the time of his arrest in July 1957 - was not a violation of Article 5 or 6 (art. 5, art. 6) of the Convention; whereas the Irish Government have contended that the Convention does not require that a person arrested or detained on preventive grounds shall be brought before a judicial authority; and that, consequently, the detention of G.R. Lawless did not conflict with the stipulations of the Convention; whereas on this point the Irish Government, not relying before the Court, as they had done before the Commission, on paragraph 1 (b) of Article 5 (art. 5-1-b), have made submissions which include the following: that Article 5 paragraph 1 (c) (art. 5-1-c) refers to two entirely separate categories of cases of deprivation of liberty - those where a person is arrested or detained "on reasonable suspicion of having committed an offence" and those where a person is arrested or detained "when it is reasonably considered necessary to prevent his committing an offence, etc."; that it is clear from the wording of the said clause that the obligation to bring the arrested or detained person before the competent judicial authority applies only to the former category of case; that this is the meaning of the clause, particularly in the English version; - that the preliminary work on Article 5 (art. 5) supports this construction of the said clause; that account must be taken of the fact that the said Article (art. 5) is derived from a proposal submitted to the Committee of Experts by the United Kingdom delegation in March 1950 and that the French version is consequently only a translation of the original English text; that, as regards paragraph 1 (c) on the Article (art. 5-1-c), the words "or when it is reasonably considered necessary" appeared in the first draft as "or which is reasonably considered to be necessary" and, in the English version, clearly refer to the words "arrest or detention" and not to the phrase "effected for the purpose of bringing him before the competent legal authority"; that this clause subsequently underwent only drafting alterations; - that Article 5, paragraph 3 (art. 5-3) does not conflict with this construction of paragraph 1 (c) of the same Article (art. 5-1-c); that paragraph 3 (art. 5-3) applies only to the first category of cases mentioned in paragraph 1 (c) (art. 5-1-c) and not to cases of the arrest or detention of a person "when it is reasonably considered necessary to prevent his committing an offence"; that this interpretation is supported by the fact that in Common Law countries a person cannot be put on trial for having intended to commit an offence; - that Article 5, paragraph 3 (art. 5-3), is also derived from a proposal submitted in March 1950 by the United Kingdom delegation to the "Committee of Experts" convened to prepare the first draft of a Convention; that the British proposal was embodied in the draft produced by the Committee of Experts; that this draft was then examined by a "Conference of Senior Officials" who deleted from paragraph 3 (art. 5-3) the words "or to prevent his committing a crime"; that paragraph 3 (art. 5-3), after amendment by the Senior Officials, accordingly read as follows: "Anyone arrested or detained on the charge of having committed a crime, in accordance with the provisions of paragraph 1 (c) (art. 5-1-c), shall be brought promptly before a judge or other officer authorised by law."; - that it follows from the foregoing that the Senior Officials intended to exclude from Article 5, paragraph 3 (art. 5-3), the case of a person arrested to prevent his committing a crime; that this intention on the part of the Senior Officials is further confirmed by the following passage in their Report to the Committee of Ministers (Doc. CM/WP 4 (50) 19, p. 14): "The Conference considered it useful to point out that where authorised arrest or detention is effected on reasonable suspicion of preventing the commission of a crime, it should not lead to the introduction of a regime of a Police State. It may, however, be necessary in certain circumstances to arrest an individual in order to prevent his committing a crime, even if the facts which show his intention to commit the crime do not of themselves constitute a penal offence. In order to avoid any possible abuses of the right thus conferred on public authorities, Article 13, para. 2 (art. 13-2), will have to be applied strictly."; - that it is clear from the report of the Senior Officials that they - being aware of the danger of abuse in applying a clause which, as in the case of Article 5, paragraph 1 (c) (art. 5-1-c), allows the arrest or detention of a person when it is reasonably considered necessary to prevent his committing an offence - wished to obviate that danger not by means of a judicial decision but through the strict enforcement of the rule in Article 13, paragraph 2, of the draft, which later became Article 18 (art. 18) of Convention; and that Article 5 (art. 5) subsequently underwent only drafting alterations which, however, did not make the meaning of the text absolutely clear or render it proof against misinterpretation; - whereas the Irish Government have contended that Article 6 (art. 6) of the Convention is irrelevant to the present case, since there was no criminal charge against Lawless; 11. Whereas the Commission in its Report and its Principal Delegate at the oral hearing rebutted the construction placed by the Irish Government on Article 5 (art. 5) and based in part on the preparatory work; whereas the Commission contends in the first place that, in accordance with a well-established rule concerning the interpretation of international treaties, it is not permissible to resort to preparatory work when the meaning of the clauses to be construed is clear and unequivocal; and that even reference to the preparatory work can reveal no ground for questioning the Commission's interpretation of Article 5 (art. 5); whereas, in support of its interpretation it has put forward submissions which may be summarised as follows: that it is true that, in the Council of Europe, Article 5 (art. 5) is derived from a proposal made to the Committee of Experts by the United Kingdom delegation in March 1950, but that that proposal was based on a text introduced in the United Nations by a group of States which included not only the United Kingdom but also France; that the United Nations text was prepared in a number of languages, including Englishand French; that the British delegation, when introducing their proposal in the Committee of Experts of the Council of Europe, put in both the French and the English versions of the text in question; that the English version cannot therefore be regarded as the dominant text; that on the contrary, all the evidence goes to show that the changes made in the English version, particularly in that of Article 5, paragraph 1 (c) (art. 5-1-c), during the preparatory work at the Council of Europe were intended to bring it into line with the French text, which, apart from a few drafting alterations of no importance to the present case, was essentially the same as that finally adopted for Article 5 (art. 5) of the Convention; that this is true even of the comma after the words" autorité judiciaire compétente ", which strictly bears out the construction placed by the Commission on Article 5, paragraph 1 (c) (art. 5-1-c); that the preparatory work on Article 5, paragraph 3 (art. 5-3), leaves no room for doubt about the intention of the authors of the Convention to require that everyone arrested or detained in one or other of the circumstances mentioned in paragraph 1 (c) of the same Article (art. 5-1-c) should be brought promptly before a judge; that this text, too, had its origin in the United Nations draft Covenant in both languages; that the words "on the charge of having committed a crime" were in fact deleted on 7th August 1950 by the Committee of Ministers themselves, but only in order to bring the English text into line with the French, which had already been given the following wording by the Conference of Senior Officials:" Toute personne arrêtée ou détenue, dans les conditions prévues au paragraphe 1 (c) (art. 5-1-c) etc. ..."; and that the submissions of the Irish Government therefore receive no support from the preparatory work; 12. Whereas in the first place, the Court must point out that the rules set forth in Article 5, paragraph 1 (b), and Article 6 (art. 5-1-b, art. 6) respectively are irrelevant to the present proceedings, the former because G.R. Lawless was not detained "for non-compliance with the ... order of a court" and the latter because there was no criminal charge against him; whereas, on this point, the Court is required to consider whether or not the detention of G.R. Lawless from 13th July to 11th December 1957 under the 1940 Amendment Act conflicted with the provisions of Article 5, paragraphs 1 (c) and 3 (art. 5-1-c, art. 5-3); 13. Whereas, in this connection, the question referred to the judgment of the Court is whether or not the provisions of Article 5, paragraphs 1 (c) and 3 (art. 5-1-c, art. 5-3), prescribe that a person arrested or detained "when it is reasonably considered necessary to prevent his committing an offence" shall be brought before a judge, in other words whether, in Article 5, paragraph 1 (c) (art. 5-1-c), the expression "effected for the purpose of bringing him before the competent judicial authority" qualifies only the words "on reasonable suspicion of having committed an offence" or also the words "when it is reasonably considered necessary to prevent his committing an offence"; 14. Whereas the wording of Article 5, paragraph 1 (c) (art. 5-1-c), is sufficiently clear to give an answer to this question; whereas it is evident that the expression "effected for purpose of bringing him before the competent legal authority" qualifies every category of cases of arrest or detention referred to in that sub-paragraph (art. 5-1-c); whereas it follows that the said clause permits deprivation of liberty only when such deprivation is effected for the purpose of bringing the person arrested or detained before the competent judicial authority, irrespective of whether such person is a person who is reasonably suspected of having committed an offence, or a person whom it is reasonably considered necessary to restrain from committing an offence, or a person whom it reasonably considered necessary to restrain from absconding after having committed an offence; Whereas, further, paragraph 1 (c) of Article 5 (art. 5-1-c) can be construed only if read in conjunction with paragraph 3 of the same Article (art. 5-3), with which it forms a whole; whereas paragraph 3 (art. 5-3) stipulates categorically that "everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge ..." and "shall be entitled to trial within a reasonable time"; whereas it plainly entails the obligation to bring everyone arrested or detained in any of the circumstances contemplated by the provisions of paragraph 1 (c) (art. 5-1-c) before a judge for the purpose of examining the question of deprivation of liberty or for the purpose of deciding on the merits; whereas such is the plain and natural meaning of the wording of both paragraph 1 (c) and paragraph 3 of Article 5 (art. 5-1-c, art. 5-3); Whereas the meaning thus arrived at by grammatical analysis is fully in harmony with the purpose of the Convention which is to protect the freedom and security of the individual against arbitrary detention or arrest; whereas it must be pointed out in this connexion that, if the construction placed by the Court on the aforementioned provisions were not correct, anyone suspected of harbouring an intent to commit an offence could be arrested and detained for an unlimited period on the strength merely of an executive decision without its being possible to regard his arrest or detention as a breach of the Convention; whereas such an assumption, with all its implications of arbitrary power, would lead to conclusions repugnant to the fundamental principles of the Convention; whereas therefore, the Court cannot deny Article 5, paragraphs 1 (c) and 3 (art. 5-1-c, art. 5-3), the plain and natural meaning which follows both from the precise words used and from the impression created by their context; whereas, therefore, there is no reason to concur with the Irish Government in their analysis of paragraph 3 (art. 5-3) seeking to show that that clause is applicable only to the first category of cases referred to in Article 5, paragraph 1 (c) (art. 5-1-c), to the exclusion of cases of arrest or detention of a person "when it is reasonably considered necessary to prevent his committing an offence"; Whereas, having ascertained that the text of Article 5, paragraphs 1 (c) and 3, (art. 5-1-c, art. 5-3) is sufficiently clear in itself and means, on the one hand, that every person whom "it is reasonably considered necessary to prevent ... committing an offence" may be arrested or detained only "for the purpose of bringing him before the competent legal authority" and, on the other hand, that once a person is arrested or detained he shall be brought before a judge and "shall be entitled to trial within a reasonable time", and that, having also found that the meaning of this text is in keeping with the purpose of the Convention, the Court cannot, having regard to a generally recognised principle regarding th interpretation of international treaties, resort to the preparatory work; 15. Whereas it has been shown that the detention of G.R. Lawless from 13th July to 11th December 1957 was not "effected for the purpose of bringing him before the competent legal authority" and that during his detention he was not in fact brought before a judge for trial "within a reasonable time"; whereas it follows that his detention under Section 4 of the Irish 1940 Act was contrary to the provisions of Article 5, paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) of the Convention; whereas it will therefore be necessary to examine whether, in the particular circumstances of the case, the detention was justified on other legal grounds; As to whether the detention of G.R. Lawless from 13th July to 11th December 1957 under Section 4 of the Offences against the State (Amendment) Act, 1940, conflicted with the Irish Government's obligations under Article 7 (art. 7) of the Convention. 16. Whereas the Commission referred before the Court to the renewed allegation of G.R. Lawless that his detention constituted a violation of Article 7 (art. 7) of the Convention; whereas the said Article (art. 7) reads as follows: "(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. (2) This Article (art. 7) shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations." Whereas the submissions made by G.R. Lawless before the Commission were substantially as follows: that the 1940 Act was brought into force on 8th July 1957 and that he was arrested on 11th July 1957; that is was evident from the proceedings before the Detention Commission - which had to examine cases of detention effected under the 1940 Act - that the Minister of State, in signing the warrant of detention, had taken into consideration matters alleged to have occurred before 8th July 1957; that, if the substance rather than the form of the 1940 Act were considered, detention under that Act would constitute a penalty for having committed an offence; that the offences to which the 1940 Act relates were not punishable before 8th July 1957, when the Act came into force; that, furthermore, if he had been convicted of the alleged offences by an ordinary court, he would in all probability have been sentenced to less severe penalties which would have been subject to review on appeal in due course of law; 17. Whereas the Commission, in its Report, expressed the opinion that Article 7 (art. 7) was not applicable in the present case; that in particular, G.R. Lawless was not detained as a result of a conviction on a criminal charge and that his detention was not a "heavier penalty" within the meaning of Article 7 (art. 7); that, moreover, there was no question of section 4 of the 1940 Act being applied retroactively, since a person was liable to be detained under that clause only if a Minister of State was of the opinion that that person was, after the power of detention conferred by section 4 had come into force, engaged in activities prejudicial to the preservation of public peace and order or the security of the State; 18. Whereas the Irish Government share the Commission's opinion on this point; 19. Whereas the proceedings show that the Irish Government detained G.R. Lawless under the Offences against the State (Amendment) Act, 1940, for the sole purpose of restraining him from engaging in activities prejudicial to the preservation of public peace and order or the security of the State; whereas his detention, being a preventive measure, cannot be deemed to be due to his having been held guilty of a criminal offence within the meaning of Article 7 (art. 7) of the Convention; whereas it follows that Article 7 (art. 7) has no bearing on the case of G.R. Lawless; whereas, therefore, the Irish Government in detaining G.R. Lawless under the 1940 Act, did not violate their obligation under Article 7 (art. 7) of the Convention. As to whether, despite Articles 5 and 6 (art. 5, art. 6) of the Convention, the detention of G.R. Lawless was justified by the right of derogation allowed to the High Contracting Parties in certain exceptional circumstances under Article 15 (art. 15) of the Convention. 20. Whereas the Court is called upon to decide whether the detention of G.R. Lawless from 13th July to 11th December 1957 under the Offences against the State (Amendment) Act, 1940, was justified, despite Articles 5 and 6 (art. 5, art. 6) of the Convention, by the right of derogation allowed to the High Contracting Parties in certain exceptional circumstances under Article 15 (art. 15) of the Convention; 21. Whereas Article 15 (art. 15) reads as follows: "(1) In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. (2) No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision. (3) Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed."; 22. Whereas it follows from these provisions that, without being released from all its undertakings assumed in the Convention, the Government of any High Contracting Party has the right, in case of war or public emergency threatening the life of the nation, to take measures derogating from its obligations under the Convention other than those named in Article 15, paragraph 2 (art. 15-2), provided that such measures are strictly limited to what is required by the exigencies of the situation and also that they do not conflict with other obligations under international law; whereas it is for the Court to determine whether the conditions laid down in Article 15 (art. 15) for the exercise of the exceptional right of derogation have been fulfilled in the present case; (a) As to the existence of a public emergency threatening the life of the nation. 23. Whereas the Irish Government, by a Proclamation dated 5th July 1957 and published in the Official Gazette on 8th July 1957, brought into force the extraordinary powers conferred upon it by Part II of the Offences against the State (Amendment) Act, 1940, "to secure the preservation of public peace and order"; 24. Whereas, by letter dated 20th July 1957 addressed to the Secretary-General of the Council of Europe, the Irish Government expressly stated that "the detention of persons under the Act is considered necessary to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution"; 25. Whereas, in reply to the Application introduced by G.R. Lawless before the Commission, the Irish Government adduced a series of facts from which they inferred the existence, during the period mentioned, of "a public emergency threatening the life of the nation" within the meaning of Article 15 (art. 15); 26. Whereas, before the Commission, G.R. Lawless submitted in support of his application that the aforesaid facts, even if proved to exist, would not have constituted a "public emergency threatening the life of the nation" within the meaning of Article 15 (art. 15); whereas, moreover, he disputed some of the facts adduced by the Irish Government; 27. Whereas the Commission, following the investigation carried out by it in accordance with Article 28 (art. 28) of the Convention, expressed a majority opinion in its Report that in "July 1957 there existed in Ireland a public emergency threatening the life of the nation within the meaning of Article 15, paragraph 1 (art. 15-1), of the Convention"; 28. Whereas, in the general context of Article 15 (art. 15) of the Convention, the natural and customary meaning of the words "other public emergency threatening the life of the nation" is sufficiently clear; whereas they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed; whereas, having thus established the natural and customary meaning of this conception, the Court must determine whether the facts and circumstances which led the Irish Government to make their Proclamation of 5th July 1957 come within this conception; whereas the Court, after an examination, find this to be the case; whereas the existence at the time of a "public emergency threatening the life of the nation", was reasonably deduced by the Irish Government from a combination of several factors, namely: in the first place, the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957; 29. Whereas, despite the gravity of the situation, the Government had succeeded, by using means available under ordinary legislation, in keeping public institutions functioning more or less normally, but whereas the homicidal ambush on the night 3rd to 4th July 1957 in the territory of Northern Ireland near the border had brought to light, just before 12th July - a date, which, for historical reasons is particularly critical for the preservation of public peace and order - the imminent danger to the nation caused by the continuance of unlawful activities in Northern Ireland by the IRA and various associated groups, operating from the territory of the Republic of Ireland; 30. Whereas, in conclusion, the Irish Government were justified in declaring that there was a public emergency in the Republic of Ireland threatening the life of the nation and were hence entitled, applying the provisions of Article 15, paragraph 1 (art. 15-1), of Convention for the purposes for which those provisions were made, to take measures derogating from their obligations under the Convention; (b) As to whether the measures taken in derogation from obligations under the Convention were "strictly required by the exigencies of the situation". 31. Whereas Article 15, paragraph 1 (art. 15-1), provides that a High Contracting Party may derogate from its obligations under the Convention only "to the extent strictly required by the exigencies of the situation"; whereas it is therefore necessary, in the present case, to examine whether the bringing into force of Part II of the 1940 Act was a measure strictly required by the emergency existing in 1957; 32. Whereas G.R. Lawless contended before the Commission that even if the situation in 1957 was such as to justify derogation from obligations under the Convention, the bringing into operation and the enforcement of Part II of the Offences against the State (Amendment) Act 1940 were disproportionate to the strict requirements of the situation; 33. Whereas the Irish Government, before both the Commission and the Court, contended that the measures taken under Part II of the 1940 Act were, in the circumstances, strictly required by the exigencies of the situation in accordance with Article 15, paragraph 1 (art. 15-1), of the Convention; 34. Whereas while the majority of the Commission concurred with the Irish Government's submissions on this point, some members of the Commission drew from the facts established different legal conclusions; 35. Whereas it was submitted that in view of the means available to the Irish Government in 1957 for controlling the activities of the IRA and its splinter groups the Irish Government could have taken measure which would have rendered superfluous so grave a measure as detention without trial; whereas, in this connection, mention was made of the application of the ordinary criminal law, the institution of special criminal courts of the type provided for by the Offences against the State Act, 1939, or of military courts; whereas it would have been possible to consider other measures such as the sealing of the border between the Republic of Ireland and Northern Ireland; 36. Whereas, however, considering, in the judgment of the Court, that in 1957 the application of the ordinary law had proved unable to check the growing danger which threatened the Republic of Ireland; whereas the ordinary criminal courts, or even the special criminal courts or military courts, could not suffice to restore peace and order; whereas, in particular, the amassing of the necessary evidence to convict persons involved in activities of the IRA and its splinter groups was meeting with great difficulties caused by the military, secret and terrorist character of those groups and the fear they created among the population; whereas the fact that these groups operated mainly in Northern Ireland, their activities in the Republic of Ireland being virtually limited to the preparation of armed raids across the border was an additional impediment to the gathering of sufficient evidence; whereas the sealing of the border would have had extremely serious repercussions on the population as a whole, beyond the extent required by the exigencies of the emergency; Whereas it follows from the foregoing that none of the above-mentioned means would have made it possible to deal with the situation existing in Ireland in 1957; whereas, therefore, the administrative detention – as instituted under the Act (Amendment) of 1940 - of individuals suspected of intending to take part in terrorist activities, appeared, despite its gravity, to be a measure required by the circumstances; 37. Whereas, moreover, the Offences against the State (Amendment) Act of 1940, was subject to a number of safeguards designed to prevent abuses in the operation of the system of administrative detention; whereas the application of the Act was thus subject to constant supervision by Parliament, which not only received precise details of its enforcement at regular intervals but could also at any time, by a Resolution, annul the Government's Proclamation which had brought the Act into force; whereas the Offences against the State (Amendment) Act 1940, provided for the establishment of a "Detention Commission" made up of three members, which the Government did in fact set up, the members being an officer of the Defence Forces and two judges; whereas any person detained under this Act could refer his case to that Commission whose opinion, if favourable to the release of the person concerned, was binding upon the Government; whereas, moreover, the ordinary courts could themselves compel the Detention Commission to carry out its functions; Whereas, in conclusion, immediately after the Proclamation which brought the power of detention into force, the Government publicly announced that it would release any person detained who gave an undertaking to respect the Constitution and the Law and not to engage in any illegal activity, and that the wording of this undertaking was later altered to one which merely required that the person detained would undertake to observe the law and refrain from activities contrary to the 1940 Act; whereas the persons arrested were informed immediately after their arrest that they would be released following the undertaking in question; whereas in a democratic country such as Ireland the existence of this guarantee of release given publicly by the Government constituted a legal obligation on the Government to release all persons who gave the undertaking; Whereas, therefore, it follows from the foregoing that the detention without trial provided for by the 1940 Act, subject to the above-mentioned safeguards, appears to be a measure strictly required by the exigencies of the situation within the meaning of Article 15 (art. 15) of the Convention; 38. Whereas, in the particular case of G.R. Lawless, there is nothing to show that the powers of detention conferred upon the Irish Government by the Offences against the State (Amendment) Act 1940, were employed against him, either within the meaning of Article 18 (art. 18) of the Convention, for a purpose other than that for which they were granted, or within the meaning of Article 15 (art. 15) of the Convention, by virtue of a measure going beyond what was strictly required by the situation at that time; whereas on the contrary, the Commission, after finding in its Decision of 30th August 1958 on the admissibility of the Application that the Applicant had in fact submitted his Application to it after having exhausted the domestic remedies, observed in its Report that the general conduct of G.R. Lawless, "his association with persons known to be active members of the IRA, his conviction for carrying incriminating documents and other circumstances were such as to draw upon the Applicant the gravest suspicion that, whether or not he was any longer a member, he still was concerned with the activities of the IRA at the time of his arrest in July 1957; whereas the file also shows that, at the beginning of G.R. Lawless's detention under Act No. 2 of 1940, the Irish Government informed him that he would be released if he gave a written undertaking "to respect the Constitution of Ireland and the Laws" and not to "be a member of or assist any organisation that is an unlawful organisation under the Offences against the State Act, 1939"; whereas in December 1957 the Government renewed its offer in a different form, which was accepted by G.R. Lawless, who gave a verbal undertaking before the Detention Commission not to "take part in any activities that are illegal under the Offences against the State Acts 1939 and 1940" and was accordingly immediately released; (c) As to whether the measures derogating from obligations under the Convention were "inconsistent with ... other obligations under international law". 39. Whereas Article 15, paragraph 1 (art. 15-1), of the Convention authorises a High Contracting Party to take measures derogating from the Convention only provided that they "are not inconsistent with ... other obligations under international law"; 40. Whereas, although neither the Commission nor the Irish Government have referred to this provision in the proceedings, the function of the Court, which is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention (Article 19 of the Convention) (art. 19), requires it to determine proprio motu whether this condition has been fulfilled in the present case; 41. Whereas no facts have come to the knowledge of the Court which give it cause hold that the measure taken by the Irish Government derogating from the Convention may have conflicted with the said Government's other obligations under international law; As to whether the letter of 20th July 1957 from the Irish Government to the Secretary-General of the Council of Europe was a sufficient notification for the purposes of Article 15, paragraph 3 (art. 15-3), of the Convention. 42. Whereas Article 15, paragraph 3 (art. 15-3), of the Convention provides that a Contracting Party availing itself of the right of derogation under paragraph 1 of the same Article (art. 15-1) shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore and shall also inform him when such measures have ceased to operate; 43. Whereas, in the present case, the Irish Government, on 20th July 1957, sent the Secretary-General of the Council of Europe a letter informing him - as is stated therein: "in compliance with Article 15 (3) (art. 15-3) of the Convention" - that Part II of the Offences against the State (Amendment) Act, 1940, had been brought into force on 8th July 1957; whereas copies of the Irish Government's Proclamation on the subject and of the 1940 Act itself were attached to the said letter; whereas the Irish Government explained in the said letter that the measure in question was "considered necessary to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution"; 44. Whereas G.R. Lawless contested before the Commission the Irish Government's right to rely on the letter of 20th July 1957 as a valid notice of derogation un Article 15, paragraph 3 (art. 15-3), of the Convention; whereas, in substance, he contended before the Commission: that the letter had not the character of a notice of derogation, as the Government had not sent it for the purpose of registering a formal notice of derogation; that even if the letter were to be regarded as constituting such a notice, it did not comply with the strict requirements of Article 15, paragraph 3 (art. 15-3), in that it neither adduced, as a ground for detention without trial, the existence of a time of war or other public emergency threatening the life of the nation nor properly defined the nature of the measure taken by the Government; whereas the Principal Delegate of the Commission, in the proceedings before the Court, made known a third contention of G.R. Lawless to the effect that the derogation, even if it had been duly notified to the Secretary-General on 20th July 1957, could not be enforced against persons within the jurisdiction of the Republic of Ireland in respect of the period before 23rd October 1957, when it was first made public in Ireland; 45. Whereas the Commission expressed the opinion that the Irish Government had not delayed in bringing the enforcement of the special measures to the attention of the Secretary-General with explicit reference to Article 15, paragraph 3 (art. 15-3), of the Convention; whereas the terms of the letter of 20th July 1957, to which were attached copies of the 1940 Act and of the Proclamation bringing it into force, were sufficient to indicate to the Secretary-General the nature of the measures taken and that consequently, while noting that the letter of 20th July did not contain a detailed account of the reasons which had led the Irish Government to take the measures of derogation, it could not say that in the present case there had not been a sufficient compliance with the provisions of Article 15, paragraph 3 (art. 15-3); whereas, with regard to G.R. Lawless'third contention the Delegates of the Commission added, in the proceedings before the Court, that Article 15, paragraph 3 (art. 15-3), of the Convention required only that the Secretary-General of the Council of Europe be informed of the measures of derogation taken, without obliging the State concerned to promulgate the notice of derogation within the framework of its municipal laws; 46. Whereas the Irish Government, in their final submissions, asked the Court to state, in accordance with the Commission's opinion, that the letter of 20th July 1957 constituted a sufficient notification for the purposes of Article 15, paragraph 3 (art. 15-3), of the Convention or, alternatively, to declare that there is nothing in the said paragraph 3 (art. 15-3) which, in the present case, detracts from the Irish Government's right to rely on paragraph 1 of the said Article 15 (art. 15-1); 47. Whereas the Court is called upon in the first instance, to examine whether, in pursuance of paragraph 3 of Article 15 (art. 15-3) of the Convention, the Secretary-General of the Council of Europe was duly informed both of the measures taken and of the reason therefore; whereas the Court notes that a copy of the Offences against the State (Amendment) Act, 1940, and a copy of the Proclamation of 5th July, published on 8th July 1957, bringing into force Part II of the aforesaid Act were attached to the letter of 20th July; that it was explained in the letter of 20th July that the measures had been taken in order "to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution"; that the Irish Government thereby gave the Secretary-General sufficient information of the measures taken and the reasons therefore; that, in the second place, the Irish Government brought this information to the Secretary-General's attention only twelve days after the entry into force of the measures derogating from their obligations under the Convention; and that the notification was therefore made without delay; whereas, in conclusion, the Convention does not contain any special provision to the effect that the Contracting State concerned must promulgate in its territory the notice of derogation addressed to the Secretary-General of the Council of Europe; Whereas the Court accordingly finds that, in the present case, the Irish Government fulfilled their obligations as Party to the Convention under Article 15, paragraph 3 (art. 15-3), of the Convention; | The Court observed that neither of the means available to the Irish Government to deal with the activities of the IRA and its splinter groups – namely, the application of the ordinary law or even the institution of special criminal courts – would have made it possible to deal with the situation existing in Ireland in 1957 and to restore peace and order. In those circumstances it took the view that detention without bringing terrorist suspects before a judge, as provided for by the 1940 Act, subject to a number of safeguards designed to prevent abuses in the operation of this system of administrative detention (e.g. constant supervision by Parliament, a "Detention Commission" and a promise to release any person detained who gave an undertaking not to engage in any illegal activity), could be regarded as a measure strictly confined to the exigencies of the situation within the meaning of Article 15 of the Convention; in other words a measure required by the circumstances. As to the applicant’s particular case, |
857 | Interception of communications, phone tapping and secret surveillance | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 35. Articles 37 and 38 of the Constitution, which provide for the protection of privacy of correspondence and other means of communication and the protection of personal data, respectively, provide as follows: Article 37 “The privacy of correspondence and other means of communication shall be guaranteed. Only a law may prescribe that on the basis of a court order the protection of the privacy of correspondence and other means of communication and the inviolability of personal privacy be suspended for a set time where such is necessary for the institution or course of criminal proceedings or for reasons of national security.” Article 38 “The protection of personal data shall be guaranteed. The use of personal data contrary to the purpose for which it was collected is prohibited. The collection, processing, designated use, supervision, and protection of the confidentiality of personal data shall be provided for by law. Everyone has the right of access to the collected personal data that relates to him and the right to judicial protection in the event of any abuse of such data.” B. Criminal Procedure Act 36. Section 149b of the Criminal Procedure Act (Official Gazette no. 8/06), in the chapter regulating measures taken by the police in pre-trial proceedings, provided: “(1) If there are grounds for suspecting that a criminal offence for which a perpetrator is prosecuted ex officio has been committed, is being committed or is being prepared or organised, and information on communications using electronic communications networks needs to be obtained in order to uncover this criminal offence or the perpetrator thereof, the investigating judge may, at the request of the public prosecutor adducing reasonable grounds, order the operator of the electronic communications network to furnish him with information on the participants and the circumstances and facts of electronic communications, such as: the number or other form of identification of users of electronic communications services; the type, date, time and duration of the call or other form of electronic communications service; the quantity of data transmitted; and the place where the electronic communications service was performed. (2) The request and order must be in written form and must contain information that allows the means of electronic communication to be identified, an indication of reasonable grounds, the time period for which the information is required and other important circumstances that dictate use of the measure. (3) If there are grounds for suspecting that a criminal offence for which a perpetrator is prosecuted ex officio has been committed or is being prepared, and information on the owner or user of a certain means of electronic communication whose details are not available in the relevant directory, as well as information on the time that the means of communication was or is in use, needs to be obtained in order to uncover this criminal offence or the perpetrator thereof, the police may request that the operator of the electronic communications network furnish them with this information, at their written request and even without the consent of the individual to whom the information refers. (4) The operator of electronic communications networks may not disclose to its clients or a third party the fact that it has given certain information to an investigating judge (first paragraph of this section) or the police (preceding paragraph), or that it intends to do so.” C. Electronic Communications Act 37. At the time the data in question were obtained (August 2006), the Electronic Communications Act ( “ECA”, Official Gazette nos. 43/04 and 86/04) was in force. This Act implemented, among other things, Directive 2002/58/EC (see paragraph 56 below). The following provisions were relevant: Section 1 Content of the Act “This Act regulates the conditions for the provision of electronic communication networks and for the provision of electronic communication services ... determines the rights of users ... regulates the protection of the secrecy and confidentiality of electronic communications and regulates other questions related to electronic communications.” Section 3 Terms used “ The terms used in this Act have the following meaning: ... 25. Traffic data are any data processed for the purpose of the conveyance of communication on an electronic communications network or for the billing thereof. ... ” Section 103 Confidentiality of communications “ (1) Confidentiality of communications refers to : 1. the content of communications; 2. traffic data and location data connected to the communication mentioned in subsection (1)1 above; 3. facts and circumstances relating to unsuccessful attempts to establish connections. (2) An operator and anyone involved in the provision and performance of its activities must continue to safeguard the confidentiality of communications after ceasing performance of the activity for which it was bound to safeguard confidentiality. (3) Those entities liable under subsection (2) above may only obtain the information on communications referred to in subsection (1) above to the extent necessary for the provision of specific publicly available communications services, and may only use or transfer [ posreduje ] this information to others in order to provide these services. (4) Where operators obtain information on the content of communications or record or retain communications and the traffic data related to them under subsection (3) above, they must notify the user of this when the subscriber contract is signed or upon the commencement of provision of the publicly available communications service, and erase information on the content of communications or the communications themselves as soon as this is technically feasible and the information is no longer necessary for the provision of the particular publicly available communications service. (5) All forms of surveillance or interception, such as listening, tapping, recording, retention and transfer [ posredovanje ] of the communications referred to in subsection (1) above shall be prohibited, unless this is permitted under subsection (4) above or under section 107 of this Act, or if this form of surveillance or interception is necessary for the sending of messages (e.g. facsimile messages, electronic mail, electronic mailboxes, voicemail and SMS services). ... ” Section 104 Traffic data “ (1) Traffic data relating to subscribers and users, and processed and stored by the operator, should be deleted or rendered anonymous, as soon as they are no longer needed for the transfer of messages. (2) Without prejudice to the provision of subsection (1) above, an operator may, until complete payment for a service but no longer than until the expiry of the limitation period, retain and process traffic data required for the purposes of calculation and of payment relating to interconnection. (3) For the purpose of marketing electronic communications services or for the provision of value-added services, the provider of a publicly available electronic communications service may process the data referred to in subsection (1) above to the extent and for the duration necessary for such services or marketing, but only if the subscriber or user to whom the data relate has given his prior consent. Subscribers or users must be informed, prior to giving consent, of the types of traffic data which are processed and the duration of such processing. A user or subscriber shall have the right to withdraw his or her consent at any time. (4) For the purposes referred to in subsection (2) above, a service provider must indicate in the general terms and conditions which traffic data will be retained and processed, and the duration thereof, and declare that they will be treated in accordance with the law on data protection. (5) Traffic data may only be processed under subsections (1) to (4) above by persons acting under the authority of an operator and handling billing or traffic management, responding to customer enquiries, detecting fraud, marketing electronic communications services or providing a value-added service, and this processing must be limited to what is necessary for the purposes of such activities. (6) Without prejudice to the provisions of subsections (1), (2), (3) and (5) above, an operator shall, upon a written request of a competent body set up for the purpose of settling disputes, in particular interconnection or billing disputes, and in accordance with the applicable legislation, send traffic data to such body. ” Section 107 Lawful interception of communications “ ... (2) An operator should enable the lawful interception of communications at a determined point of the public communication network as soon as it receives a copy of the operative part of the order of the competent authority indicating the point ... at which a lawful interception of communications should take place and other data related to the means, scope and duration of this measure. ” 38. Further amendments to the ECA, namely ECA-A, which were enacted on 28 November 2006, that is after the contested measures had been taken in the present case ( Official Gazette no. 129/06 ), regulated the retention of traffic data for the purposes of, inter alia, criminal proceedings. This included data necessary for the identification of the source of communication, such as the name and address of the subscriber to whom a certain IP address was assigned, data needed for the identification of the destination of communications, and data needed to identify the date, time and duration of communications (sections 107.a and 107.b). No distinction between the static and the dynamic IP address was made in this regard. Furthermore, the amendment, introduced by section 107.č, stipulated that the operator was under an obligation to allow access to or to transfer the retained data immediately and no later than three days after receiving the transcript of the “order” issued by the “competent body”. Section 107.e of the amended Act provided that “the court that has ordered that certain data be accessed should keep a record of data concerning orders for access and transfer of the retained data ”. It also regulated the reporting procedure on access to retained data – from the courts to the Ministry of Justice and then from the ministry to the European Commission. 39. On 20 December 2012 a new Electronic Communications Act (“ECA-1”, Official Gazette 109/2012) was adopted. Its sections 166 and 168 provide as follows: Section 166 Transfer of retained data to competent bodies “ (1) An operator must, immediately or without undue delay, transfer retained data as soon as it receives a copy of the operative part of an order from a competent body stating all the required data on the scope of access. ... (4) An operator may not disclose an order to the persons to whom the order ... relates or to third parties, nor disclose that it has transferred or will transfer retained data to the competent body under this section. ... (7) The information commissioner shall monitor the fulfilment of the obligations by the providers under this section, in so far as they do not fall under the supervision of other competent bodies on the basis of other laws.” Section 168 Data on access orders and data transfers “ (1) A court that has ordered access to data shall keep a record of access orders and the transfers of data retained pursuant to section 166 of this Act, comprising: 1. the number of cases in which access to retained data was ordered; 2. a statement of the date or period for which the data was requested, the date on which the competent body issued the data access order and the date of the transfer of the data; 3. the number of cases in which data access orders could not be executed. (2) The competent court shall forward the record referred to in subsection (1) above for the current year to the ministry responsible for justice by no later than 31 January the following year. (3) The ministry responsible for justice shall, on the basis of the records received from all courts, prepare a joint report on access to retained data by no later than 20 February each year for the previous year. It shall forward it to the ministry, which shall in turn forward it without delay to the European Commission and to the National Assembly Committee responsible for supervising the intelligence and security services. (4) The ministry responsible for justice shall, after obtaining the prior opinion of the President of the Supreme Court of the Republic of Slovenia, issue instructions using the reporting forms under this section. ” D. Personal Data Protection Act 40. Further to Slovenia becoming a member of the European Union, the Slovenian Parliament adopted, on 15 July 2004, a new Personal Data Protection Act (Official Gazette no. 86/ 04 ), underpinned by Directive 95/46/ES (see paragraph 53 below). It provides, in so far as relevant, as follows: Section 1 Contents of the Act “This Act determines the rights, responsibilities, principles and measures to prevent unconstitutional, unlawful and unjustified encroachments on the privacy and dignity of an individual (hereinafter: individual) in the processing of personal data.” Section 6 Meaning of terms “The terms used in this Act shall have the following meanings: 1. Personal data - are any data relating to an individual, irrespective of the form in which they are expressed. 2. Individual - is an identified or identifiable natural person to whom personal data relate; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity, where the method of identification does not incur significant costs or a disproportionate effort or require a large amount of time. ... 18. Anonymising - is an alteration to the form of personal data such that they can no longer be linked to the individual or where such link can only be made with disproportionate efforts, expense or use of time. 19. Sensitive personal data - are data on racial, national or ethnic origin, political, religious or philosophical beliefs, trade-union membership, health status, sexual life, ... ” 41. Section 2 of the Personal Data Protection Act provided that personal data should be processed lawfully and fairly. Section 8 provided that personal data could be processed if the law provided for doing so or on the basis of the consent of the individual affected. Under section 12, personal data could be processed without any other legal basis if this was urgently necessary for the protection of a person ’ s life or limb. 42. The Personal Data Protection Act also provided that data could be collected only for defined and lawful purposes and processed accordingly ( section 16) and only on condition that this was necessary for the achievement of those purposes ( section 21). Thereafter they should be deleted, destroyed, blocked or anonymised (ibid). The Act also set out the measures and procedures that should be taken by operators and contracted processors to secure personal data, and to prevent accidental or deliberate unauthorised destruction of data, their alteration, loss or unauthorised processing ( sections 24 and 25). E. Criminal Code 43. The Criminal Code applicable at the material time prohibited, in its Article 187, the presentation of pornographic material to minors under the age of fourteen and the manufacturing and distributing of pornographic material depicting minors. The relevant provision reads as follows: “ ... (2) Whosoever abuses a minor for the manufacturing of pornographic pictures, audio-visual or other objects of pornographic content, or uses a minor to act in a pornographic performance, shall be sentenced to a term of imprisonment of between six months and five years. (3) Whosoever produces, distributes, sells, imports or exports pornographic or other sexual material depicting minors, supplies it in any other way, or possesses such material with the intent of producing, distributing, selling, importing, exporting or offering it in any other way, shall be liable to the same sentence as in subsection (2) above. ... ” F. Constitutional Court decision no. Up-106/05 of 2 October 2008 44. Case no. Up-106/05 concerned a complainant who had been convicted of the illicit manufacture and trade in narcotics, based on data (a list of telephone numbers and text messages) obtained from his SIM card, without a court order. He complained that his conviction had been based on unlawfully obtained evidence, as the police had monitored his mobile telephone communication without a court order. The Constitutional Court upheld the complaint and quashed the lower courts ’ judgments. 45. The Constitutional Court found that not only the content of the communication but also the circumstances and facts connected to the communication were protected, including the data stored in the telephone ’ s memory, which were an integral element of communication privacy. Therefore, obtaining data on the last dialled and last unanswered calls entailed an examination of the content and circumstances of the communication, and were consequently an interference with the right determined in the first paragraph of Article 37 of the Constitution. The court pointed out that such interference was, pursuant to Article 37 § 2 of the Constitution, admissible if the following conditions were met: ( 1) the interference was prescribed by law; ( 2) the interference was allowed on the basis of a court order; ( 3) the duration of the interference was precisely determined; and ( 4) the interference was necessary for the institution or course of criminal proceedings or for reasons of national security. III. RELEVANT INTERNATIONAL LAW A. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 46. The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (opened for signature on 28 January 1981, ETS No. 108, hereinafter “the 1981 Convention”) was ratified by all Council of Europe Member States and entered into force with respect to Slovenia on 1 September 1994. Article 1 sets out the object and purpose of the Convention, which is “to secure in the territory of each Party for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him ( ‘ data protection ’ ).” The 1981 Convention, among other things, protects individuals against abuses and applies to all data processing carried out by both the private and public sector, such as data processing by the judiciary and law - enforcement authorities. In Article 2 “ personal data ” are defined as any information relating to an identified or identifiable individual. Article 5 requires that personal data undergoing automatic processing be obtained and processed fairly and lawfully. B. Convention on Cybercrime 47. The Convention on Cybercrime ( opened for signature on 23 November 2001, came into force on 1 July 2004, ETS No. 185, hereinafter “the Cybercrime Convention”) took effect in Slovenia on 1 January 2005. 48. The Cybercrime Convention is the first international treaty on crimes committed via the Internet and is open to all States. It requires countries to establish as criminal offences, among others, child pornography. 49. Article 1 defines, for the purposes of the Cybercrime Convention, “ traffic data ” as “any computer data relating to a communication by means of a computer system, generated by a computer system that formed a part in the chain of communication, indicating the communication ’ s origin, destination, route, time, date, size, duration, or type of underlying service.” Its Explanatory Report further provides, in the relevant part, as follows ( § 30) : “The ‘ origin ’ refers to a telephone number, Internet Protocol (IP) address, or similar identification of a communications facility to which a service provider renders services. The ‘ destination ’ refers to a comparable indication of a communications facility to which communications are transmitted. The term ‘ type of underlying service ’ refers to the type of service that is being used within the network, e.g., file transfer, electronic mail, or instant messaging.” 50. Pursuant to the Cybercrime Convention the following measures should be available to the authorities to combat the crimes listed therein: Article 18 – Production order “1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order: ... b ) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider ’ s possession or control. 2. The powers and procedures referred to in this article shall be subject to Articles 14 and 15. 3. For the purpose of this article, the term ‘ subscriber information ’ means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which can be established: a ) the type of communication service used, the technical provisions taken thereto and the period of service; b ) the subscriber ’ s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement; c ) any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement.” Article 20 – Real-time collection of traffic data “ 1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to: a) collect or record through the application of technical means on the territory of that Party, and b) compel a service provider, within its existing technical capability: ( i ) to collect or record through the application of technical means on the territory of that Party; or ( ii ) to co-operate and assist the competent authorities in the collection or recording of, traffic data, in real-time, associated with specified communications in its territory transmitted by means of a computer system. ... 4. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.” Article 21 – Interception of content data “ 1. Each Party shall adopt such legislative and other measures as may be necessary, in relation to a range of serious offences to be determined by domestic law, to empower its competent authorities to: a) collect or record through the application of technical means on the territory of that Party, and b) compel a service provider, within its existing technical capability: ( i ) to collect or record through the application of technical means on the territory of that Party, or ( ii ) to co-operate and assist the competent authorities in the collection or recording of, content data, in real-time, of specified communications in its territory transmitted by means of a computer system. ... 4. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.” 51. With regard to the production order, the Explanatory Report to the Convention on Cybercrime ( Budapest, 23 November 2001, ETS No. 185 ) states that, in the course of a criminal investigation, subscriber information may be needed mainly in two situations. Firstly, to identify which services and related technical measures have been used or are being used by a subscriber, such as the type of telephone service used, the type of other associated services used (for example, call forwarding, voicemail), or the telephone number or other technical address (for example, the email address). Secondly, where a technical address is known, subscriber information is needed in order to assist in establishing the identity of the person concerned. According to the explanatory report, a production order provides a less intrusive and less onerous measure which law - enforcement authorities can apply instead of measures such as interception of content data and real-time collection of traffic data, which must or can be limited only to serious offences. 52. The Cybercrime Convention requires that the aforementioned measures provided for in Articles 18, 20 and 21 be subject to the conditions set out in Articles 14 and 15, which, as far as relevant, read as follows: Article 14 – Scope of procedural provisions “1. Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings. ... ” Article 15 – Conditions and safeguards “1. Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this Section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality. 2. Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter alia, include judicial or other independent supervision, grounds justifying application, and limitation of the scope and the duration of such power or procedure.” IV. RELEVANT EUROPEAN UNION LAW A. Directive 95/46/EC and Regulation (EU) 2016/679 53. Article 2 (1) (a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31, hereinafter “the Data Protection Directive”) provides that “ personal data ” means “any information relating to an identified or identifiable natural person ( ‘ data subject ’ )”. Furthermore, under the aforementioned provision, an “ identifiable person ” is “one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity”. The Data Protection Directive does not apply to the area of police and criminal justice. 54. Recital 26 provides that in determining whether a person is identifiable, “ account should be taken of all the means likely reasonably to be used ... to identify the said person ”; the principles of protection will not apply to data rendered anonymous in such a way that the data subject is no longer identifiable. 55. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119/1, p. 1 ), entered into force on 24 May 2016. When it takes effect (25 May 2018), it will replace the Data Protection Directive. Article 4 defines an “ identifiable natural person ” as “one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier ... ”. Recital 26 further provides that, in ascertaining whether means are reasonably likely to be used to identify the natural person, “account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments.” It further explains that “[t]he principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable.” B. Directive 2002/58/EC 56. In addition, specifically for the field of electronic communications, Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37 ) was adopted on 12 July 2002. It does not apply to the area of police and criminal justice but harmonises the provisions of the member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communications sector. Article 2 provides a definition of a “ user ” as meaning “any natural person using a publicly available electronic communications service, for private or business purposes, without necessarily having subscribed to this service”. It further defines “ traffic data ” as “any data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof”. Moreover, it defines “ communication ” as “any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service”. C. Council Framework Decision 2008/977/JHA and Directive (EU) 2016/680 57. Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters ( OJ 2008 L 350, p. 60, hereinafter “ Data Protection Framework Decision ” ) aims at providing protection of personal data of natural persons when their personal data are processed for the purpose of preventing, investigating, detecting or prosecuting a criminal offence or of executing a criminal penalty. The Data Protection Framework Decision relies to a large extent on the principles and definitions which are contained in the 1981 Convention and in the Data Protection Directive. 58. Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ 2016 L 119, p. 89) governs the handling of data by competent authorities, such as police and criminal justice authorities, for the purposes of, inter alia, investigation and prosecution of criminal offence. Article 3(1) contains the same definition of “ identifiable natural person ” and recital 21 the same explanation concerning the means of identification as the General Data Protection Regulation (see paragraph 55 above). Furthermore, Article 4 requires that personal data should be, inter alia, processed lawfully and fairly. Article 1 (3) provides that member States may provide for higher safeguards than those contained in the directive. 59. The directive replaces Framework Decision 2008/977/JHA with effect from 6 May 2018. D. Selected decisions of the Court of Justice of the European Union 60. As regards the concept of “ personal data ” under Article 2(a) of the Data Protection Directive, the Court of Justice of the European Union (CJEU) found in a judgment of 24 November 2011 in Scarlet Extended, C-70/10, EU:C:2011:771, paragraph 51, that users ’ IP addresses “were protected personal data because they allow those users to be precisely identified”. 61. In its judgment of 19 October 2016 in Breyer, C-582/14, EU:C:2016:779, the CJEU dealt with the question of the specific character of dynamic IP addresses. It noted as follows : “[ 15] IP addresses are series of digits assigned to networked computers to facilitate their communication over the internet. When a website is accessed, the IP address of the computer seeking access is communicated to the server on which the website consulted is stored. That connection is necessary so that the data accessed maybe transferred to the correct recipient. [16] Furthermore, it is clear from the order for the reference and the documents before the Court that internet service providers allocate to the computers of internet users either a ‘ static ’ IP address or a ‘ dynamic ’ IP address, that is to say an IP address which changes each time there is a new connection to the internet. Unlike static IP addresses, dynamic IP addresses do not enable a link to be established, through files accessible to the public, between a given computer and the physical connection to the network used by the internet service provider.” 62. The CJEU was of the view that a dynamic IP address did not constitute information relating to an “ identified natural person ”, since such an address did not directly reveal the identity of the natural person who owned the computer from which a website had been accessed, or that of another person who might have used that computer (ibid, § 38). The CJEU went on to determine whether a dynamic IP address, in that case registered by an online media service provider, may be treated as data relating to an “ identifiable natural person ” within the meaning of Article 2(a) of the Data Protection Directive. For that purpose the CJEU, relying on recital 26, considered whether the possibility to combine the dynamic IP address, which was in the case at issue in the hands of the online media service provider, with the additional data held by the ISP constituted a means likely reasonably to be used to identify the data subject (§§ 41 and 45). The ECJU drew the following conclusion on that point: “[49] Having regard to all the foregoing considerations, the answer to the first question is that Article 2(a) of Directive 95/46 must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person.” V. COMPARATIVE LAW A. German Federal Constitutional Court 63. The applicant referred to the judgment of the German Federal Constitutional Court (“ the GFCC”) of 24 January 2012, BVerfG, 1 BvR 1299/05. The GFCC partly upheld complaints concerning, inter alia, manual retrieval of information on dynamic IP addresses stored by the telecommunications service providers. 64. Under section 113 of the Telecommunications Act (“ the TCA ”) the telecommunications service providers were required to supply, at the request of the competent (including law - enforcement) agencies, information on certain data collected, for the purpose of, inter alia, prosecuting criminal offences or regulatory offences. The impugned statutory provision was designed to be able to attribute if possible all telecommunications numbers to their respective subscribers (and in addition, ultimately, if possible, to their users). As found by the GFCC, the provision gave no specific thresholds of encroachment which would have defined its scope in more detail. Instead, it always permitted information in the individual case if this was necessary to perform the aforementioned duties. The GFCC did not find this in itself unconstitutional. However, the question that also arose was whether the impugned provision also covered information on the owner of a dynamic IP address. At the outset, the GFCC addressed the issue of a link between the subscriber information and the pre-existing content information which could be attributed to it. It found as follows ( § 113, a citation from a translation provided on the GFCC ’ s website ): “ ... the secrecy of telecommunications [Article 10.1 of the Basic Law] does not protect the confidentiality of the circumstances of each provision of telecommunications services, such as for example the attribution of the telecommunications numbers allocated by the service providers to particular subscribers.” 65. The GFCC went on to note the distinction between static and dynamic IP addresses, finding as follows ( §§ 115 and 116): “ ... the attribution of a static IP address to a particular subscriber – more precisely, to a network interface of the subscriber – as a rule also gives indirect information on a particular telecommunications event involving the person in question, since such addresses, even if they are static, are registered and become the subject of attributions identifying an individual almost only in connection with specific communications events. However, here too the conveying of information in this connection is as such limited exclusively to the abstract attribution of number and subscriber. ... In contrast, the situation is different when dynamic IP addresses are attributed to identified persons, for such addresses are particularly closely related to specific telecommunications events. This attribution is within the area of protection of Article 10.1 of the Basic Law. However, here too this does not automatically follow from the fact that the attribution of a dynamic IP address necessarily always relates to a specific telecommunications event of which it therefore indirectly also provides information. For in this connection too the information itself only relates to data which are abstractly attributed to a subscriber. There is therefore no fundamental difference from the attribution of static IP addresses. However, the application of Article 10.1 of the Basic Law is here based on the fact that when the telecommunications enterprises identify a dynamic IP address, they have to take an intermediate step, in which they examine the relevant connection data of their customers, that is, [they] must access specific telecommunications events. These telecommunications connections individually stored by the service providers are subject to the secrecy of telecommunications, irrespective of whether they have to be kept available by the service providers under a statutory duty ... or whether they are stored by them on a contractual basis. Insofar as the legislature imposes a duty on the telecommunications enterprises to access these data and to evaluate them in the interest of the state ’ s performance of its duties, this is an encroachment upon Article 10.1 of the Basic Law. This is the case not only if the service providers must supply the connection data themselves, but also if they have to use the data as a preliminary question for information. ” 66. The GFCC concluded that section 113.1 of the TCA was in breach of Article 10.1 of the Basic Law to the extent that it was a basis for the supply of information on dynamic IP addresses. 67. Furthermore, although the GFCC did not find automated retrieval of data ( section 12 of the TCA) concerning the static IP address unconstitutional, such a finding was made against the limited use of such addresses in the following context ( §§ 160 and 161) : “ ... The allocation of static IP addresses, whose attribution is at present in any case publicly accessibly in practice, is essentially restricted to institutions and large-scale users. The possibility of retrieving such numbers has little weight in these circumstances. However, § 112 TKG [TCA] may acquire substantially greater weight of encroachment if static IP addresses in future – for example on the basis of Internet Protocol Version 6 – should become more widely used as the basis of internet communication. For the question of the weight of encroachment of the identification of an IP address does not primarily depend – even if a number of fundamental rights apply in this case – on whether an IP address is technically dynamic or static, but on the actual significance of the creation of a duty of information in this connection. But if in practice static IP addresses are allocated to a great extent to private persons too, this may possibly mean that the identities of internet users are broadly or at least largely determined and that communications events in the internet are de-anonymised not only for a limited period of time, but permanently. Such a far-reaching possibility of de-anonymisation of communication in the internet goes beyond the effect of a traditional telephone number register. ... [T]he weight for the person affected of the attribution of an IP address to a subscriber may not be equated to that of the identification of a telephone number, because the former makes it possible to access information whose scope and content are substantially more far-reaching .... In view of this increased information potential, the general possibility of the identification of IP addresses would only be constitutionally permissible subject to narrower limits ... ” B. The Canadian Supreme Court 68. The R v. Spencer (2014 SCC 43, [2014] 2 S.C.R. 212) case concerned the retrieval, without prior judicial authorisation, of the appellant ’ s sister ’ s subscriber information associated with a dynamic IP address, which the police had obtained in relation to online file-sharing involving child pornography. On the basis of the subscriber information received from the ISP, the police obtained a search warrant against the appellant. The latter sought to exclude the evidence found on his computer on the basis that the police actions in obtaining his address from the ISP without prior judicial authorisation amounted to an unreasonable search contrary to the Canadian Charter of Rights and Freedom. The judgment of the Supreme Court of Canada ( “the SCC ” ) of 13 June 2014, finding in favour of the appellant, was delivered by Judge Cromwell. 69. Referring to the previous case-law on the matter, the judgment noted that the reasonable expectation of privacy standard was normative rather than simply descriptive and that it was inevitably “laden with value judgments which [were] made from the independent perspective of the reasonable and informed person who [was] concerned about the long-term consequences of government action for the protection of privacy” ( § 18). The SCC, contrary to the opinion of the trial judge, found that the appellant ’ s subjective expectation of privacy was justified by the fact that he had been the one using the network connection to transmit sensitive information. The judgment went on to determine whether the appellant ’ s subjective expectation of privacy had been reasonable. For that purpose the judgment looked at two circumstances: the nature of the privacy interest at stake and the statutory and contractual framework governing the ISP ’ s disclosure of subscriber information. As to the former, Judge Cromwell drew the following conclusions: “ [ 31 Thus, it is clear that the tendency of information sought to support inferences in relation to other personal information must be taken into account in characterizing the subject matter of the search. [ 36 ] ... The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought ... [ 41 ] There is also a third conception of informational privacy that is particularly important in the context of Internet usage. This is the understanding of privacy as anonymity. In my view, the concept of privacy potentially protected by s. 8 [right to be secure against unreasonable search or seizure] must include this understanding of privacy. [ 50 ] ... In the circumstances of this case, the police request to link a given IP address to subscriber information was in effect a request to link a specific person (or a limited number of persons in the case of shared Internet services) to specific online activities. This sort of request engages the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously undertaken online activities, activities which have been recognized by the Court in other circumstances as engaging significant privacy interests .... [51] I conclude therefore that the police request to Shaw [ISP] for subscriber information corresponding to specifically observed, anonymous Internet activity engages a high level of informational privacy. I agree with Caldwell J.A. ’ s conclusion on this point: .. . a reasonable and informed person concerned about the protection of privacy would expect one ’ s activities on one ’ s own computer used in one ’ s own home would be private.. .. In my judgment, it matters not that the personal attributes of the Disclosed Information pertained to Mr. Spencer ’ s sister because Mr. Spencer was personally and directly exposed to the consequences of the police conduct in this case. As such, the police conduct prima facie engaged a personal privacy right of Mr. Spencer and, in this respect, his interest in the privacy of the Disclosed Information was direct and personal ... ” 70. The judgment also answered the concerns of the prosecution authorities to the effect that recognising a right to online anonymity would carve out a crime-friendly Internet landscape. While acknowledging that this concern could not be taken lightly, Judge Cromwell explained that recognising an interest could not be equated to a right to anonymity and that in the present case, for example, it had seemed clear that the police could have easily obtained a production order for the subscriber information. 71. As regards the question whether the expectation of privacy was reasonable in the face of the relevant contractual and statutory provisions, the judgment found that the ISP ’ s collection, use and disclosure of the personal information of its subscribers had been subject to the Personal Information Protection and Electronic Documents Act ( “ PIPEDA ” ), which protected personal information held by organisations engaged in commercial activity from being disclosed without the knowledge or consent of the person to whom the information related. The judgment found as follows: “[ 62 ] Section 7(3) ( c. 1)(ii) allows for disclosure without consent to a government institution where that institution has identified its lawful authority to obtain the information. But the issue is whether there was such lawful authority which in turn depends in part on whether there was a reasonable expectation of privacy with respect to the subscriber information. PIPEDA thus cannot be used as a factor to weigh against the existence of a reasonable expectation of privacy ... Given that the purpose of PIPEDA is to establish rules governing, among other things, disclosure “of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information” ( s. 3 ), it would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA ’ s general prohibition on the disclosure of personal information without consent.” 72. The judgment went on to establish that the police request had had no lawful authority and that the information had therefore been obtained unconstitutionally. The court refused to draw a parallel with other police routine inquires, such as an interview with the victim of a crime. Referring to R. v. Duarte, [1990] 1 S.C.R. 30, it found as follows: “[ 67 ] ... In Duarte, the Court distinguished between a person repeating a conversation with a suspect to the police and the police procuring an audio recording of the same conversation. The Court held that the danger is ‘ not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words ’ ... Similarly in this case, the police request that the ISP disclose the subscriber information was in effect a request to link Mr. Spencer with precise online activity that had been the subject of monitoring by the police and thus engaged a more significant privacy interest than a simple question posed by the police in the course of an investigation.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 73. The applicant complained that his right to privacy had been breached because (i) the Internet service provider (hereinafter “ the ISP ” ) had retained his alleged personal data unlawfully and (ii) the police had obtained subscriber data associated with his dynamic IP address and consequently his identity arbitrarily, without a court order, in breach of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. As regards the alleged unlawful retention of personal data by the Internet service provider (ISP) 74. The Government argued that the applicant had failed to complain to the domestic courts of the unlawful retention of his personal data by the ISP. Consequently, the domestic courts had not addressed this issue in the impugned decisions. They further argued that as the ISP was a private entity, the applicant could have sued it for damages in civil proceedings. One way or another, this part of the application should, in their view, be declared inadmissible for non-exhaustion. 75. In addition, the Government maintained that the applicant could not claim to be a victim of the alleged violation of Article 8 concerning the retention of the personal data, as those data had not concerned him but the Internet service subscriber, which was his father. 76. The applicant argued that the ISP had retained his personal data for almost six months without having a clear legal basis for such action and thus in violation of Article 8 of the Convention. In his observations, submitted on 15 October 2015, the applicant claimed that he had lodged his application with the Court not because the ISP had failed to keep his personal data secret or because it had retained them beyond the statutory time-limit, but because the State had obtained and used the data in question in the criminal proceedings against him. He argued that he had maintained, throughout the criminal proceedings, that the courts had relied on illegally obtained evidence. 77. The Court notes that the Government objected to the applicant ’ s victim status with respect to this complaint. However, it does not consider it necessary to address this objection because this part of the application is in any event inadmissible for the following reasons. 78. The Court observes that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. That rule is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, §§ 43-44, ECHR 2006 ‑ II). 79. In the present case, the applicant complained in his application to the Court of the retention by the ISP of what he alleged were his personal data. However, he has failed to exhaust domestic remedies in this regard as he had not made this complaint – at least in substance – in the domestic proceedings. 80. Consequently, this part of the application should be declared inadmissible under Article 35 §§ 1 and 4 of the Convention. 2. As regards the disclosure of the subscriber information 81. The Government argued that the applicant could not claim to be a victim because the subscriber information that the ISP had disclosed to the police concerned his father. 82. The applicant disputed that view. He argued that it was his privacy that had been breached, not the subscriber ’ s, and that the issue at stake was not that of ownership but that of the right to privacy. 83. The Court notes that this issue is closely related to the merits of the complaint and therefore joins the Government ’ s objection to the merits. 84. It considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 85. The applicant referred to the definition of personal data in the 1981 Convention (see paragraph 46 above), arguing that the obtaining of data without a court order (see paragraph 7 above) had led to his identification. 86. He also argued that although he had disclosed the contents of his communication to an unidentifiable public, he had not waived his right to privacy with regard to traffic (metering ) data, that is data relating to the length and time of the use of the Internet and data relating to who used the Internet and what site he or she accessed during that use. In his view, such data enjoyed separate protection under the concept of private life, comprising the privacy of communications and informational privacy. 87. He submitted in this connection that the significant distinction between static and dynamic IP addresses should be recognised. While it might be possible to draw an analogy between a static IP address which was permanently attributed to the device, and a telephone number, a dynamic IP address was assigned every time the computer accessed the Internet. Referring to the German Federal Constitutional Court ’ s judgment of 24 January 2012 (see paragraph 63 above), the applicant argued that by choosing a dynamic IP address, as had the subscriber in the present case, one chose to have his or her identity concealed, as additional data were required for identifying the computer used to access the Internet and thereby the subscriber. In his view, the dynamic IP address therefore fell within the scope of traffic data (metering), to which section 149b(1) applied. 88. The applicant further pointed out that the data on the content of communication had been obtained without the Slovenian authorities ’ involvement. The Slovenian authorities would have needed a court order for obtaining such data, but had avoided that otherwise necessary step by requesting the subscriber information on the basis of section 149b(3) of the CPA. As regards the letter, the applicant alleged that at the time when the Slovenian police had obtained the data connecting his IP address to his identity, the law regulating access to such data had not been clear ( lex certa ) and therefore the lawfulness required by the second paragraph of Article 8 had not been met. In particular, at the time of the interference (August 2006), the domestic law provisions regarding this issue had been contradictory. The second paragraph of Article 37 of the Constitution required a court order for interference with the right to privacy of communication. The ECA provided that traffic data should be kept secret and that communication could be intercepted only on the basis of an order by a competent authority. In the domestic legal system that could only be a court order or, theoretically, a prosecution order. Anyhow, under section 107 it was possible only to “intercept” data and not to hand over certain retained data. Moreover, the providers were under an obligation to delete retained data pursuant to section 104 as soon as they no longer needed them for billing purposes. On the other hand, section 149b ( 1 ) and ( 3 ) of the CPA provided for different conditions of accessing data and it was unclear what the distinction in application between the two was. As a result of that uncertainty in the domestic legislation, one could not say that the legal protection against arbitrary interference by public authorities with the right to privacy was sufficient. 89. In the applicant ’ s opinion, the ECA was lex specialis in relation to the CPA and it did not provide for a possibility to transfer personal data to the police. In such a situation of lacunae in the law, the Constitution should be applied directly, and the Constitution clearly required a court order for the transfer of such data. (b) The Government 90. The Government explained that IP addresses were personal data and that likewise dynamic IP addresses were personal data but did not amount to traffic data. The only difference between the two was that the static IP address stayed with the subscriber as long as he did not change ISP, whereas a new dynamic IP address was assigned every time the subscriber accessed the Internet. With regard to both, the ISP stored data concerning the time of the use of a specific IP address. 91. The Government argued that the investigation had focused on the applicant only after the seizure and inspection of the computers had taken place and after those living at his address had been questioned. Thus the link between the subscriber and the applicant had become apparent only after the home search, which had been carried out on the basis of a valid court order. 92. While acknowledging that the IP address was an item of personal data because it allowed for the identification of an individual, the Government pointed out that it was each user ’ s choice whether to use a website that allowed disclosure of personal data and/or content of communication to an unidentifiable and unlimited circle of individuals. The Government submitted that the applicant had not argued that he had hidden the IP address he had used to access the file-exchange program. As the disclosure of the IP address implied the disclosure of subscriber information, the applicant had not shown intent to keep his identity private or hidden and his right to private life was thus not engaged in the present case. 93. The Government argued that the applicant could not have expected that the subscriber information related to the dynamic IP address would have been withheld from the police. In their view, the contested measures had been lawful and proportionate to the aim of safeguarding the integrity of children, who, as particularly vulnerable individuals, enjoyed special protection under the Convention. 94. The Government drew a parallel with the situation where a suspect had been caught on closed-circuit television camera when driving. In such a situation, the suspect ’ s photograph and his registration plates sufficed to identify him. Similarly, in the present case, it must be assumed that the moment the police had had the dynamic IP address and the timeline of its use, the user had been identified by way of such data. The Government thus argued that the domestic courts had correctly applied section 149b(3) instead of section 149b(1), as the latter concerned traffic data, not data concerning the owner or user of a communication device. 2. The Court ’ s assessment (a) Preliminary observations and scope of the Court ’ s assessment 95. The Court at the outset observes the particular context of the present case, which concerns the disclosure of subscriber information associated with a dynamic IP address. It takes note of the extensive legislation and of the case-law concerning personal data protection and privacy of electronic communication within the European Union and will rely on them and on other relevant comparative-law material in assessing some of the technical matters applicable to the present case. It will also have regard, where appropriate, to the legal doctrines established therein. 96. As a preliminary matter, the Court further notes that an IP address is a unique number assigned to every device on a network, which allows the devices to communicate with each other. Unlike the static IP address, which is permanently allocated to a particular network interface of a particular device, a dynamic IP address is assigned to a device by the ISP temporarily, typically each time the device connects to the Internet (see paragraphs 61, 87 and 90 above). The IP address alone enables certain details, such as the ISP to which the user is connected and a broader physical location, most likely the location of the ISP, to be determined. Most dynamic IP addresses can thus be traced to the ISP and not to a specific computer. To obtain the name and address of the subscriber using a dynamic IP address, the ISP is normally required to look up this information and for that purpose to examine the relevant connection data of its subscribers (see paragraphs 61 and 65 above). 97. In the present case the information on the dynamic IP address and the time it had been assigned were collected by the Swiss police, who had carried out a monitoring exercise of users of the specific Internet network involving child pornography material. They forwarded the information to the Slovenian police, who obtained from the ISP the name and address of the subscriber associated with the dynamic IP address in question – the applicant ’ s father (see paragraphs 6 and 7 above). 98. The Government argued that Article 8 of the Convention did not apply in this case because the applicant had not been directly affected by the contested measure and because even if he had been affected, he had willingly renounced his right to privacy by publicly exchanging the files in question (see paragraphs 92 and 93 above). In order to answer those questions, the Court must consider whether the applicant, or any other individual using the Internet, had a reasonable expectation that his otherwise public online activity would remain anonymous (see paragraphs 115 to 118 above). 99. The Court reiterates in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives, and that protection includes a need to identify the offenders and bring them to justice (see K.U. v. Finland, no. 2872/02, § 46, ECHR 2008-V ). However, the questions raised by the Government concerning the applicability of Article 8 are to be answered independently from the legal or illegal character of the activity in question, as well as without any prejudice to the Convention ’ s requirement that protection of vulnerable individuals must be provided by the member States, as pointed out in, amongst others, K.U. v. Finland (cited above). (b ) Applicability of Article 8 (i) Recapitulation of the relevant principles 100. The Court reiterates that private life is a broad term not susceptible to exhaustive definition. Article 8 protects, inter alia, the right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see Uzun v. Germany, no. 35623/05, § 43, ECHR 2010-VI (extracts) ). 101. There are a number of elements relevant to the consideration of whether a person ’ s private life is concerned by measures affected outside his or her home or private premises. In order to ascertain whether the notions of “private life” and “correspondence” are applicable, the Court has on several occasions examined whether individuals had a reasonable expectation that their privacy would be respected and protected ( see Bărbulescu v. Romania [GC], no. 61496/08, § 73, ECHR 2017, and Copland v. the United Kingdom, no. 62617/00, § § 41- 42, ECHR 2007-I ). In that context, it has stated that a reasonable expectation of privacy is a significant though not necessarily conclusive factor (see Bărbulescu, cited above, § 73 ). 102. In the context of personal data, the Court has pointed out that the term “private life” must not be interpreted restrictively. It has found that the broad interpretation corresponds with that of the 1981 Convention, the purpose of which is “to secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him” (Article 1). Such personal data are defined as “any information relating to an identified or identifiable individual” (Article 2) ( see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000 ‑ II; see also paragraph 46 above ). 103. It further follows from well-established case-law that where there has been a compilation of data on a particular individual, the processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private life considerations arise ( see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 136, ECHR 2017 (extracts) ). Article 8 of the Convention thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged (ibid., § 137). 104. The Court has previously considered information such as metering data on the telephone numbers dialled ( see Malone v. the United Kingdom, 2 August 1984, § 84, Series A no. 82), personal information relating to telephone, email and Internet usage ( see Copland, cited above, §§ 41 and 43), information stored by the prosecution authorities on a card concerning the facts relating to the applicant ’ s business relations ( see Amann, cited above, § 66) and public information stored by the authorities on the applicant ’ s distant past ( see Rotaru v. Romania [GC], no. 28341/95, §§ 43 and 44, ECHR 2000 ‑ V) to fall within the ambit of Article 8. 105. Moreover, the Court has previously acknowledged in Delfi AS v. Estonia ([GC] no. 64569/09, § 147, ECHR 2015) the importance of online anonymity, noting that it has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of ideas and information in an important manner, including, notably, on the Internet. At the same time, the Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of the information once disclosed, which may considerably aggravate the effects of unlawful speech on the Internet compared to traditional media (ibid). 106. In the aforementioned case the Court elaborated also on different degrees of anonymity engaged in online activity and observed as follows ( ibid., § 148) : “The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification – ranging from limited verification (for example, through activation of an account via an e-mail address or a social network account) to secure authentication, be it by the use of national electronic identity cards or online banking authentication data allowing rather more secure identification of the user. A service provider may also allow an extensive degree of anonymity for its users, in which case the users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators.” (ii ) Application of the above principles to the present case ( α ) Nature of the interest involved 107. The Government did not dispute that the subscriber information in principle concerned personal data (see paragraphs 90 and 92 above). Such a conclusion also follows from the definitions contained in the 1981 Convention, the legislation of the European Union, as well as domestic legislation aimed at their implementation (see paragraphs 40, 46, 53 and 57 above). 108. In addition, the Court notes that the subscriber information associated with specific dynamic IP addresses assigned at certain times was not publicly available and therefore could not be compared to the information found in the traditional telephone directory or public database of vehicle registration numbers referred to by the Government (see paragraph 94 above). Indeed, it would appear that in order to identify a subscriber to whom a particular dynamic IP address had been assigned at a particular time, the ISP must access stored data concerning particular telecommunication events (see, for instance, paragraphs 29, 61, 65 and 95 above ). Use of such stored data may on its own give rise to private life considerations (see paragraph 103 above). 109. Furthermore, the Court cannot ignore the particular context in which the subscriber information was sought in the present case. The sole purpose of obtaining the subscriber information was to identify a particular person behind the independently collected content revealing data he had been sharing. The Court notes in this connection that there is a zone of interaction of a person with others which may fall within the scope of “private life” (see paragraph 100 above). Information on such activities engages the privacy aspect the moment it is linked to or attributed to an identified or identifiable individual ( for reference to identifiability, albeit in a rather different context, see Peck v. the United Kingdom, no. 44647/98, § 62, ECHR 2003 ‑ I, and J.S. v. the United Kingdom (dec.), no. 445/10, §§ 70 and 72, 3 March 2015). Therefore what would appear to be peripheral information sought by the police, namely the name and address of a subscriber, must in situations such as the present one be treated as inextricably connected to the relevant pre - existing content revealing data ( see the dissenting Constitutional Court judges ’ opinions cited in paragraphs 31 and 34; compare also with the position of the Canadian Supreme Court, cited in paragraphs 69 and 72 above, and the German Federal Constitutional Court, cited in paragraphs 64 and 65 above ). To hold otherwise would be to deny the necessary protection to information which might reveal a good deal about the online activity of an individual, including sensitive details of his or her interests, beliefs and intimate lifestyle. 110. In view of the above considerations, the Court concludes that the present case concerns privacy issues capable of engaging the protection of Article 8 of the Convention. ( β ) Whether the applicant was identified by the contested measure 111. The Court must next address the Government ’ s argument that the subscriber information obtained by the police disclosed only the name and address of the applicant ’ s father, and not the applicant (see paragraph 91 above ). In this connection, the Court observes that it has been generally accepted that the definition of personal data refers to information relating not only to identified but also to identifiable individuals ( see paragraphs 40, 47, 53, 54, 55 and 58 above ). 112. In the present context, the applicant was no doubt the user of the Internet service in question (see paragraph 56 above) and it was his online activity that was monitored by the police. The Court further observes that the applicant used the Internet by means of what would appear to be his own computer at his own home. It is of little significance that the applicant ’ s name was not mentioned in the subscriber information obtained by the police. Indeed, it is not unusual for one household to have a single subscription to the Internet service used by several members of the family. The fact that they are not personally subscribed to the Internet service has no effect on their privacy expectations, which are indirectly engaged once the subscriber information relating to their private use of the Internet is revealed. 113. It is clear that the purpose of the contested measure, that is the obtaining by the police, without a court order, of subscriber information associated with the dynamic IP address provided by the Swiss police (see paragraph 7 above), was to connect the computer usage to a location and, potentially, to a person. The subscriber information, which contained also the address, allowed the police to identify the home from which the Internet connections in question had been made. This led them to identify the applicant as the then suspected user of the Razorback network. 114. Having regard to the foregoing and bearing also in mind that the domestic courts did not dismiss the case on the grounds that the applicant had not been the subscriber to the Internet service in question, the Court concludes that this fact cannot be taken as a bar to the application of Article 8 in the present case. It accordingly dismisses the Government ’ s objection concerning the alleged lack of victim status (see paragraph 83 above). ( γ ) Whether the applicant had a reasonable expectation of privacy 115. In order to ascertain whether the notion of a “private life” is applicable to the present case, it remains for the Court to examine whether, in view of the publicly accessible nature of the network in question, the applicant had a reasonable expectation that his privacy would be respected and protected ( see paragraph 101 above ). In this connection, the Slovenian Constitutional Court and the respondent Government (see paragraphs 14 and 18 of the Constitutional Court ’ s decision, cited in paragraph 29 above; see also paragraph 92 above) found it important that the applicant had participated in the Razorback network to which access had not been restricted. They considered that he had knowingly exposed his online activity and associated dynamic IP address to the public. Thus, in their opinion, his expectation of privacy had not been legitimate and, moreover, he should have been considered to have waived it ( ibid. ). 116. The Court, like the Constitutional Court, accepts that the applicant, when exchanging files with pornographic material through the Razorback network, expected, from his subjective angle, that that activity would remain private and that his identity would not be disclosed (see paragraph 14 of the Constitutional Court ’ s decision cited in paragraph 29 above). However, unlike the Constitutional Court, the Court considers that the fact that he did not hide his dynamic IP address, assuming that it is possible to do so, cannot be decisive in the assessment of whether his expectation of privacy was reasonable from an objective standpoint. In this connection, it notes that the question is clearly not whether the applicant could have reasonably expected to keep his dynamic IP address private but whether he could have reasonably expected privacy in relation to his identity. 117. The Court has previously acknowledged the anonymity aspect of online privacy (see Delfi AS, cited in paragraph 105 above, see also paragraph 12 of the Constitutional Court ’ s decision, cited in paragraph 29 above ), relating to the nature of the online activity, in which the users participate without necessarily being identifiable. This anonymity conception of privacy is an important factor to be taken into account in the present assessment. In particular, it has not been argued that the applicant had ever disclosed his identity in relation to the online activity in question (see in this connection the dissenting opinion of Judge Jadek Pensa, cited in paragraph 33 above ) or that he was for example identifiable by the particular website provider through an account or contact data. His online activity therefore engaged a high degree of anonymity (see Delfi AS, cited in paragraph 105 above, § 148), as confirmed by the fact that the assigned dynamic IP address, even if visible to other users of the network, could not be traced to the specific computer without the ISP ’ s verification of data following a request from the police. 118. Lastly, the Court notes that the applicable legal and regulatory framework might also be a relevant, though not necessarily decisive, factor in determining the reasonable expectation of privacy ( see, for instance, J.S. v. the United Kingdom (dec.), cited above, § 70, and Peev v. Bulgaria, no. 64209/01, § 39, 26 July 2007 ). In the present case, neither of the parties submitted information regarding the terms of the contract on the basis of which the Internet service had been provided to the applicant ’ s father. As to the statutory framework, the Court finds it sufficient to note that Article 37 of the Constitution guaranteed the privacy of correspondence and of communications and required that any interference with this right be based on a court order (see paragraph 35 above). Therefore, also from the standpoint of the legislation in force at the relevant time, the applicant ’ s expectation of privacy with respect to his online activity could not be said to be unwarranted or unreasonable. ( δ ) Conclusion 119. For all of the above reasons, the Court concludes that the applicant ’ s interest in having his identity with respect to his online activity protected falls with the scope of the notion of “private life” and that Article 8 is therefore applicable to this complaint. (c) Compliance with Article 8 (i) Whether there was interference 120. Having regard to the above conclusion that the applicant ’ s right to respect for his private life as guaranteed by Article 8 § 1 was engaged in the present case, the Court further finds it established that the police request to the ISP and their use of the subscriber information leading to the applicant ’ s identification amounted to an interference with this right (see, mutatis mutandis, Rotaru, cited above, § 46, and Uzun, cited above, § 52). In view of the foregoing, it does not consider it necessary to determine whether the measure in question amounted also to an interference with the applicant ’ s right to respect for his correspondence. 121. The Court must therefore examine whether the interference with the applicant ’ s right to privacy was in conformity with the requirements of the second paragraph of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question. (ii) Whether the interference was in accordance with the law 122. The Court notes that the expression “in accordance with the law”, within the meaning of Article 8 § 2 requires firstly that the contested measure should have some basis in domestic law. Second, the domestic law must be accessible to the person concerned. Third, the person affected must be able to foresee the consequences of the domestic law for him, and fourth, the domestic law must be compatible with the rule of law (see, among many other authorities, Rotaru, cited above, § 52; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and Sallinen and Others v. Finland, no. 50882/99, § 76, 27 September 2005 ). 123. The Court also reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. However, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention as interpreted in the light of the Court ’ s case-law (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 81 and 82, ECHR 2006 ‑ V). 124. In the present case, assuming that the obtaining by the police of the subscriber information associated with the dynamic IP address in question had some basis in domestic law because section 149b(3) of the CPA provided that the police could obtain information on the owner or user of a certain means of electronic communication from the ISP (see paragraph 36 above), the Court must examine whether that law was accessible and foreseeable and compatible with the rule of law. 125. It notes that the present case raises no issues with respect to the accessibility of the law. As regards the remaining requirements, the Court reiterates that a rule is “foreseeable” if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct (see Rotaru, cited above, § 55 and the principles summarised therein). In addition, compatibility with the rule of law requires that domestic law provides adequate protection against arbitrary interference with Article 8 rights (see, mutatis mutandis, Amann, cited above, §§ 76-77; Bykov v. Russia [GC], no. 4378/02, § 76, 10 March 2009; see also Weber and Saravia v. Germany (dec.), no. 54934/00, § 94, ECHR 2006 ‑ XI; and Liberty and Others, cited above, § 62). The Court must thus be satisfied also that there exist adequate and effective guarantees against abuse. This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 77, 28 June 2007, with reference to Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28, and Uzun, cited above, § 63 ). 126. Having regard to the particular context of the case, the Court would emphasise that the Cybercrime Convention obliges the States to make measures such as the real-time collection of traffic data and the issuing of production orders available to the authorities in combating, inter alia, crimes related to child pornography (see paragraphs 47 to 51 above). However, such measures are, pursuant to Article 15 of that Convention, “ subject to conditions and safeguards provided for under [State parties ’ ] domestic law” and must “as appropriate in view of the nature of the procedure or power concerned, inter alia, include judicial or other independent supervision, grounds justifying application, and limitation of the scope and the duration of such power or procedure” (see paragraph 52 above). 127. In the present case, the Court notes that section 149 b (3) of the CPA (see paragraph 36 above), relied on by the domestic authorities, concerned a request for information on the owner or user of a certain means of electronic communication. It did not contain specific rules as to the association between the dynamic IP address and subscriber information. The Court further notes that Article 37 of the Constitution required a court order for any interference with privacy of communication (see paragraph 35 above). Furthermore, the ECA (see paragraph 37 above), which specifically regulated the secrecy and confidentiality of electronic communication, did not at the relevant time provide for the possibility that subscriber information and related traffic data be accessed and transferred for the purposes of criminal proceedings. It provided that electronic communications, including the related traffic data, were confidential and as such should be protected by the ISP (see paragraph 37 above). It further stipulated that the ISP should not transfer the traffic data to others unless this was necessary for the provision of the service, except where the lawful interception of communications had been ordered by the competent authority (see section 103 of the ECA, cited in paragraph 37 above). Therefore, the legislation was, at the very least, not coherent as regards the level of protection afforded to the applicant ’ s privacy interest. 128. Having said that, the Court would be usurping the function of national courts were it to attempt to make an authoritative statement as to which law should have prevailed in the present case. It must instead turn to the reasoning offered by the domestic courts. It notes in this connection that the Constitutional Court considered that the “ identity of the communicating individual [was] one of the important aspects of communication privacy” and that its disclosure required a court order pursuant to paragraph 2 of Article 37 of the Constitution (see paragraph 18 of the Constitutional Court ’ s decision, cited in paragraph 29 above). More specifically, according to the Constitutional Court ’ s interpretation, which was consistent with its previous case-law finding that the traffic data, as defined under the domestic law, fell within the protection of Article 37 of the Constitution ( ibid. ), the disclosure of subscriber information associated with a certain dynamic IP address in principle required a court order and could not be obtained by means of a simple written request by the police. 129. The Court observes that, indeed, the only reason for the Constitutional Court dismissing the applicant ’ s complaint – that is, for approving of the disclosure of the subscriber information without a court order – was the presumption that the applicant had “waived the legitimate expectation of privacy” (see paragraph 18 of the Constitutional Court ’ s decision, cited in paragraph 29 above). However, the Court, having regard to its findings in the context of the applicability of Article 8, does not find the Constitutional Court ’ s position on that question to be reconcilable with the scope of the right to privacy under the Convention (see paragraphs 115 to 118 above). Bearing in mind the Constitutional Court ’ s finding that the “identity of the communicating individual” fell within the scope of the protection of Article 37 of the Constitution (see paragraph 128 above) and the Court ’ s conclusion that the applicant had a reasonable expectation that his identity with respect to his online activity would remain private ( see paragraphs 115 to 118 above), a court order was necessary in the present case. Moreover, nothing in the domestic law prevented the police from obtaining it given that they, a few months after obtaining the subscriber information, during which time apparently no investigative steps had been taken in the case, requested and obtained a court order for what would seem to be, at least in part, the same information as that which had already been in their possession (see paragraph 8 above). The domestic authorities ’ reliance on section 149b(3) of the CPA was therefore manifestly inappropriate and, what is more, it offered virtually no protection from arbitrary interference. 130. In this connection, the Court notes that at the relevant time there appears to have been no regulation specifying the conditions for the retention of data obtained under section 149b(3) of the CPA and no safeguards against abuse by State officials in the procedure for access to and transfer of such data. As regards the latter, the police, having at their disposal information on a particular online activity, could have identified an author by merely asking the ISP provider to look up that information. Furthermore no independent supervision of the use of these police powers has been shown to have existed at the relevant time, despite the fact that those powers, as interpreted by the domestic courts, compelled the ISP to retrieve the stored connection data and enabled the police to associate a great deal of information concerning online activity with a particular individual without his or her consent (see paragraphs 108 and 109 above). 131. The Court further notes that soon after the contested measure had been taken against the applicant, the Parliament adopted amendments to the ECA (see paragraph 38 above, as well as the relevant provisions in the subsequent new law cited in paragraph 39 ). Those amendments provided, among other things, rules on the retention of data concerning the origin of communications, that is, inter alia, the name and address of the subscriber to whom a certain IP address had been assigned, and the procedure for accessing and transferring them. This, however, had no effect on the applicant ’ s situation. 132. Bearing in mind the above, the Court is of the view that the law on which the contested measure, that is the obtaining by the police of subscriber information associated with the dynamic IP address in question (see paragraph 7 above), was based and the way it was applied by the domestic courts lacked clarity and did not offer sufficient safeguards against arbitrary interference with Article 8 rights. 133. In these circumstances, the Court finds that the interference with the applicant ’ s right to respect for his private life was not “in accordance with the law” as required by Article 8 § 2 of the Convention. Consequently, the Court need not examine whether the contested measure had a legitimate aim and was proportionate. 134. Having considered all of the above, the Court concludes that there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 135. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 136. The applicant claimed 32,000 euros (EUR) in respect of non-pecuniary damage, which included EUR 7,000 for the distress he had suffered because of the trial against him, EUR 15,000 because he had been unjustifiably imprisoned and EUR 10,000 for the stigmatisation he had suffered in the society as a result of his conviction. 137. The Government argued that the applicant ’ s claim for non-pecuniary damage was unsubstantiated and excessive. They further argued that there was no connection between the violation of Article 8 alleged in the present case and the alleged non-pecuniary damage in relation to the applicant ’ s criminal conviction and prison sentence. In particular, even if the information in question had been excluded from the file, the applicant could not have avoided the criminal proceedings against him. Moreover, the Government maintained that as the applicant had admitted that he could request the reopening of the proceedings in the event of the finding of a violation, a declaratory finding by the Court should suffice. 138. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant. B. Costs and expenses 139. The applicant also claimed EUR 4,335.50 for the costs and expenses incurred before the domestic courts and EUR 2,600 for those incurred before the Court plus value-added tax ( VAT ). He argued that those sums had been calculated on the basis of the official tariff for lawyers. 140. The Government argued that the costs the applicant had claimed with respect to his representation in the domestic proceedings included VAT. They also included the costs of a legal opinion, namely EUR 2,000, which had clearly not been produced for the purposes of the domestic proceedings. As regards the claim for the cost of the proceedings before the Court, the Government argued that it was excessive. Moreover, except for the bill for the aforementioned legal opinion, the applicant had not submitted any evidence that he had incurred costs on account of his legal representation. 141. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 922 for costs and expenses in the domestic proceedings and EUR 2,600 for the proceedings before the Court. In total, he should thus be awarded EUR 3,522 for costs and expenses. C. Default interest 142. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention. It found in particular that the legal provision used by the police to obtain the subscriber information associated with the dynamic IP address had not met the Convention standard of being “in accordance with the law”. The provision had lacked clarity, offered virtually no protection from arbitrary interference, had no safeguards against abuse and no independent supervision of the police powers involved. |
770 | Confidentiality of personal information concerning health | II. RELEVANT NATIONAL LAW A. Legal regulation of the MADEKKI 24. Section 10 of the Medical Treatment Law ( Ārstniecības likums ) at the relevant time provided that the MADEKKI was the institution responsible for monitoring the quality of medical care provided in medical institutions. 25. The MADEKKI ’ s work at the relevant time was governed in more detail by its statute ( nolikums ), which had been approved by the Cabinet of Ministers. The statute provided that the MADEKKI was a government institution, whose main functions were to inspect and monitor the professional quality of health care in medical institutions irrespective of their ownership status (paragraph 1). Paragraph 3 of the statute listed the principal functions of the MADEKKI, such as to examine complaints in order to protect the rights of patients (paragraph 3.3), to oversee and issue reports concerning the professional quality of medical care in the event of complaints (paragraph 3.4), to issue reports on the quality of medical care in medical institutions (paragraph 3.6) and the like. 26. According to its statute the MADEKKI had a right to carry out scheduled (“ plānveida ”) checks on the quality of medical care as well as to carry out the required checks in response to complaints and requests (paragraph 4.1). Paragraph 4.2 authorised the MADEKKI “to request from private individuals and officials documents and information concerning questions within its field of competence”. If the MADEKKI found that laws had been broken in the course of providing health care, it was authorised to apply administrative fines and issue warnings, as well as to give appropriate recommendations to doctors and administrators of medical institutions. 27. Lastly, section 7 2 of the MADEKKI statute provided that its staff had to maintain confidentiality with regard to any information obtained in the performance of their professional duties. B. Personal data 28. The Personal Data Protection Law ( Fizisko personu datu aizsardzības likums ) provides, in section 11, that the processing ( which is defined as any activities with personal data, including collecting, registering, using, and so on) of sensitive personal data (including information about a person ’ s health) is permitted only after having received written consent from the data subject. Without such consent personal data may be processed only in a limited number of situations, including “ if ... necessary for the purposes of medical treatment [or] the provision or administration of heath care services” (section 11(5)). 29. Section 7 of the Personal Data Protection Law provided more generally that processing of personal data was allowed only if that law did not provide otherwise and if at least one of the other conditions was present. One of the additional conditions was that the processing of the data was necessary for a system administrator to carry out his legal duties (section 7(3)). A “system administrator” for the purposes of this Law was “a natural or legal person who determines the aims of a data processing system and the means of processing [ of the data]”. 30. As in force at the relevant time, section 50 of the Medical Treatment Law provided that information concerning patients ’ treatment and diagnosis could only be provided to a limited number of institutions, including the MADEKKI. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 31. The applicant complained that the MADEKKI had violated her right to respect for her private life, protected Article 8 of the Convention, which, in so far as is relevant, reads as follows: “1. Everyone has the right to respect for his private ... life .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 32. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 33. The parties agreed that the applicant ’ s medical data formed part of her private life and that the collection of such data by the MADEKKI constituted an interference with her right to respect for her private life. The Court sees no reason to hold otherwise. Therefore there has been an interference with the applicant ’ s right to respect for her private life. It remains to be determined whether the interference complied with the requirements of the second paragraph of Article 8 of the Convention. 1. Submissions of the parties 34. The Government maintained that the interference had been in accordance with the law. They relied on the conclusions reached by the Senate of the Supreme Court to the effect that the MADEKKI was authorised to check the quality of health care not only in situations where it had received a complaint from a patient. The Senate was of the opinion that a provider of health care services, “with the aim of protecting public interests, is also entitled to request the assessment of the quality of medical care ” in order that, should any irregularities be found, they might be eliminated and their recurrence with respect to other patients avoided in the future. 35. The Government further relied on the conclusions of the Senate that sections 10 (see paragraph 24 above) and 50 (see paragraph 30 above) of the Medical Treatment Law in combination with the relevant provisions of the statute of the MADEKKI (the Government referred, inter alia, to paragraphs 1, 3.3, 3.4, 3.6, 4.1 and 4.2 of the statute), and taking into account the exception to the prohibition of the processing of personal data contained in section 11(5) of the Personal Data Protection Law, entitled the MADEKKI to collect and process the applicant ’ s sensitive data “in order to monitor the quality of medical care, which in turn is part of the provision of heath care services”. 36. The Government submitted that the MADEKKI had collected the applicant ’ s data in order to establish whether the treatment administered to her on 16 June 1997 had complied with the legislation in force at the material time. If any violations of the applicable legislation had been found, it would have helped to prevent similar situations from arising in the future. Thus the purpose of collecting the applicant ’ s personal data had been to protect public health and the rights and freedoms of others. 37. In addition, referring to a statement made by the director of the Cēsis hospital during the hearing before the Administrative District Court, the Government pointed out that the MADEKKI assessment had been ordered in order to determine whether the doctor at the Cēsis hospital who had performed the tubal ligation had committed any crime. 38. The Government further submitted that the hospital requested the MADEKKI to assess the treatment administered to the applicant “ as a result of the applicant ’ s attempts to achieve an out-of-court settlement with the hospital seeking to recover compensation for damage caused by the allegedly unauthorised tubal ligation. Given that [the hospital] was the respondent in a civil case which may have resulted in significant legal and financial implications, it is natural that it sought independent expert advice. It must specifically be noted that [the hospital] sought expert advice from the national independent institution competent to deal with the issue, the same institution that would have been consulted by courts, had the case proceeded further”. 39. The Government submitted that the interference with the applicant ’ s right to respect for her private life had been of an “insignificant level”. The MADEKKI, upon having completed its examination of the applicant ’ s data, had only informed the Cēsis hospital of the conclusions of its report (see paragraph 1 2 above), without making the full report available. The Government thus concluded that the MADEKKI had processed the applicant ’ s data very carefully and had respected the applicable national data protection legislation. 40. The applicant argued that the domestic law did not grant the MADEKKI the right to collect confidential medical data without receiving the patient ’ s prior consent. She submitted that section 50 of the Medical Treatment Law on which the Government sought to rely did not give the MADEKKI the right to acquire information about patients. Rather, that provision left the decision whether or not to give information about patients to the discretion of the medical institutions in possession of such information. Should the medical institution be of the opinion that disclosure would be at odds with the data protection legislation or other laws, it had an obligation to decline the MADEKKI ’ s request. 41. The applicant further criticised the Government ’ s reliance on the exception contained in section 11(5) of the Personal Data Protection Law, arguing that it was doubtful that medical treatment dispensed in 1997 could be considered to have been “administered” in 2004. 42. The applicant considered that the statute of the MADEKKI, having been approved by the Cabinet of Ministers, which is an executive and not a legislative body, could not be considered “law” for the purposes of Article 8 § 2 of the Convention. 43. The applicant argued that the only aim for which her personal data were collected by the MADEKKI had been to assist the Cēsis hospital in gathering evidence for use in the litigation concerning her sterilisation, as evidenced by the fact that the Cēsis hospital only sent its request to the MADEKKI after the applicant had set about initiating settlement negotiations with regard to her sterilisation. The applicant disagreed with the submission of the Government that the information had been collected in order to establish potential criminal liability of the doctor of the Cesis hospital. 44. The applicant was critical of the proposition that the MADEKKI had collected her personal data to protect public health or the rights and freedoms of others, as no threat to anyone ’ s health, rights or freedoms had been identified. 45. The applicant argued that the interference in the present case had not been necessary in a democratic society. Even assuming that the actions of the MADEKKI had pursued a legitimate aim in aiding the Cēsis hospital in the process of ascertaining the lawfulness of its employees ’ actions, it could have done so by using means less restrictive of individual rights. For instance, the Cēsis hospital could have forwarded the applicant ’ s data to the MADEKKI without disclosing her name. 46. The applicant also disagreed with the Government ’ s submission that the interference with her right to respect for her private life had been insignificant. Citing I. v. Finland (no. 20511/03, § 38, 17 July 2008), the applicant submitted that the collection of her personal data had undermined her confidence in the medical profession and in the health services in general. 2. Assessment of the Court 47. The Court refers to the interpretation given to the phrase “in accordance with the law” in its case-law (as summarised in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR 2008 ). Of particular relevance in the present case is the requirement for the impugned measure to have some basis in domestic law, which should be compatible with the rule of law, which, in turn, means that the domestic law must be formulated with sufficient precision and must afford adequate legal protection against arbitrariness. Accordingly the domestic law must indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise. 48. The Court takes note of the Government ’ s argument that in the light of the Senate of the Supreme Court ’ s interpretation of the domestic law the MADEKKI was authorised to assess the quality of medical care provided in medical institutions not only upon receiving complaints from patients but also in response to “requests”, which to the Senate meant requests from medical institutions. In the course of carrying out such checks the statute of the MADEKKI as well as section 50 of the Medical Treatment Law entitled the MADEKKI to collect information and documents relating to questions within its field of competence. 49. The Court reiterates that according to Article 19 of the Convention its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention ( see García Ruiz v. Spain [GC], no. 30544/96, § 29, ECHR 1999 ‑ I ). Against this background, the Court turns to the interpretation of section 11(5) of the Personal Data Protection Law given by the Senate of the Supreme Court (see paragraph 28 above). 50. The Court notes that in the present case the MADEKKI started to collect the applicant ’ s medical data in 2004, seven years after her sterilisation and at a time when the applicant was involved in civil litigation with the Cēsis hospital. In the Court ’ s view this lengthy delay raises a number of questions, such as the one highlighted by the applicant, namely, whether data collection in 2004 can be deemed to have been “ necessary for the purposes of medical treatment [ or ] the provision or administration of heath care services ” within the meaning of section 11(5) of the Data Protection Law, if the actual health care services had been provided seven years earlier, in 1997. Such a broad interpretation of an exception to the general rule militating against the disclosure of personal data might not offer sufficient guarantees against the risk of abuse and arbitrariness ( see S. and Marper, cited above, § 99 ). 51. In this context the Court finds it noteworthy that the applicant had never been informed that the MADEKKI had collected and processed her personal data in order to carry out a general control of the quality of health care provided by the Cēsis hospital to patients in situations comparable to the one of the applicant. The hospital itself was never given any recommendations on how to improve the services provided by it. The only information that was received by the hospital pertained specifically to the actions of the doctor responsible for the applicant ’ s treatment and that information was provided to the hospital at a time when there was an ongoing litigation between the applicant and the hospital. 52. The Court notes that the applicable legal norms described the competence of the MADEKKI in a very general fashion. The Senate of the Supreme Court did not explain which of its functions the MADEKKI had been carrying out or what public interest it had been pursuing when it issued a report on the legality of the applicant ’ s treatment. Accordingly the Senate did not and could not examine the proportionality of the interference with the applicant ’ s right to respect for her private life against any public interest, particularly since it came to the conclusion that such weighing had already been done by the legislator (see paragraph 22 above). 53. Moreover, this took place against the background of domestic law, as in force at the relevant time, which did not provide for the right of the data subject to be informed that the MADEKKI would be processing his or her medical data before it started collecting the data. Thus the MADEKKI was under no legal obligation to take decisions concerning the processing of medical data in such a way as to take the data subject ’ s views into account, whether simply by asking for and potentially receiving the data subject ’ s consent or by other means (see Z v. Finland, cited above, § 101, referring to W. v. the United Kingdom, 8 July 1987, § 64, Series A no. 121 ). 54. The Court cannot accept the Government ’ s suggestion that the MADEKKI was collecting information concerning the applicant ’ s medical history in order to determine whether the doctor who had performed the tubal ligation had to be held criminally liable. Firstly, seven years after the event the prosecution had certainly become time-barred (depending on the legal classification of the potentially criminal act, the statutory limit was most likely two years but certainly no more than five years). Secondly, neither the director of the Cēsis hospital nor the MADEKKI had the legal authority to determine, even on a preliminary basis, the criminal liability of private individuals. 55. Turning to the Government ’ s argument that the MADEKKI was authorised by the law to assist the hospital in litigation, in order to curtail the legal costs (see paragraph 38 above), the Court notes that the MADEKKI is part of the State administration structure, the raison d ’ être of which is to serve the interests of the general public within the limits of its competence. According to the Government, a hospital, which at the time was a respondent party in private ‑ law litigation, was authorised to seek independent expert advice from the MADEKKI. Such a hypothesis was not discussed by the Senate of the Supreme Court. The Court has difficulties in understanding the legal basis for the argument of the Government, since, at least prima facie, none of the legal norms cited by the Government states that providing independent expert advice in ongoing litigation is one of the functions of the MADEKKI. 56. The Court reiterates that the protection of personal data, not least medical data, is of fundamental importance to a person ’ s enjoyment of the right to respect for his or her private life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve confidence in the medical profession and in the health services in general (see Z v. Finland, cited above, § 95, and Varapnickaitė-Mažylienė v. Lithuania, no. 20376/05, § 44, 17 January 2012 ). 57. The Court notes that the applicable law did not limit in any way the scope of private data that could be collected by the MADEKKI. In the present case the MADEKKI collected the applicant ’ s medical data concerning a period spanning seven years, starting one year before the disputed tubal ligation and ending six years after it. The medical information collected and analysed by the MADEKKI originated from three different medical institutions. The relevance and sufficiency of the reasons for collecting information about the applicant that was not directly related to the procedures carried out at the Cēsis hospital in 1997 appear not to have been examined at any stage of the domestic procedure (see Z v. Finland, cited above, § 110). 58. The Court notes that the MADEKKI appears to have collected the applicant ’ s medical data indiscriminately, without any prior assessment of whether the data collected would be “potentially decisive”, “relevant” or “of importance” ( see M.S. v. Sweden, cited above, §§ 38, 42 and 43, and L.L. v. France, no. 7508/02, § 46, ECHR 2006 ‑ XI ) for achieving whatever aim might have been pursued by the MADEKKI ’ s inquiry. In this context it becomes less relevant whether the staff of the MADEKKI had a legal duty to maintain the confidentiality of personal data (see paragraph 20 above and compare M.S. v. Sweden, cited above, § 43). 59. In the light of the above considerations the Court cannot find that the applicable Latvian law was formulated with sufficient precision and afforded adequate legal protection against arbitrariness. Neither did it indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise. 60. The Court accordingly concludes that the interference with the applicant ’ s right to respect for her private life was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. Consequently there has been a violation of Article 8. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 62. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. 63. The Government argued that the applicant had not substantiated her claim in respect of non-pecuniary damage. The Government submitted that, should the Court decide to award the applicant anything under this head, the award should not exceed EUR 3,500. 64. The Court considers that the applicant must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, it awards the applicant EUR 1 1 ,000 in respect of non-pecuniary damage. B. Costs and expenses 65. The applicant also claimed EUR 2,183 for the costs and expenses incurred before the domestic courts and EUR 1,435 for those incurred before the Court. 66. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum (see The Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 23, Series A no. 38 ). 67. The Government referred to the applicant ’ s submission that owing to her poor financial situation she had not actually paid the two invoices issued by her representative for the costs and expenses of her representation before the Court. Therefore, according to the Government, the costs and expenses were not “actually incurred”. 68. The Court notes that, although the applicant has not yet actually paid part of the legal fees and expenses, she is bound to pay them pursuant to a contractual obligation. Accordingly, in so far as the applicant ’ s representative is entitled to seek payment of her fees and expenses under the contract, the legal fees were “actually incurred” ( see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 106, ECHR 2009 ). 69. The Government further submitted that the sum claimed by the applicant with respect to the domestic proceedings was “exorbitant”. To support that argument, the Government relied upon the law setting down the rates to be paid by the State to legal-aid lawyers in the Latvian legal system. 70. In the light of the complexity and the scope of the domestic proceedings, the Court, having taken into account the documents in its possession, finds the sum claimed in that respect reasonable as to quantum. The Court further notes that the Government have not disputed the applicant ’ s claim in so far as it relates to the costs and expenses incurred in respect of the proceedings before the Court. The Court considers the applicant ’ s claim in that respect reasonable as to quantum as well. 71. Therefore the Court considers it reasonable to award the sum of EUR 2, 76 8, covering costs under all heads, which represents the requested sum, less EUR 850 already paid to the applicant ’ s lawyer in legal aid. C. Default interest 72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court recalled the importance of the protection of medical data to a person’s enjoyment of the right to respect for private life. It held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in the applicant’s case, finding that the applicable law had failed to indicate with sufficient clarity the scope of discretion conferred on competent authorities and the manner of its exercise. |
391 | Forced feeding of prisoners staging a hunger strike | II. RELEVANT DOMESTIC LAW A. Constitution of 26 June 1996 53. The relevant provisions of the Constitution read as follows: Article 29 “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.” Article 55 “Human and citizens'rights and freedoms are protected by the court. Everyone is guaranteed the right to challenge in a court the decisions, actions or omissions of bodies exercising State power, local self-governing bodies, officials or officers. ...After exhausting all domestic legal remedies, everyone has a right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant. Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” Chapter XV Transitional Provisions “13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person's home and other property, shall be retained for five years after the entry into force of the present Constitution.” B. The Code of Criminal Procedure, 1960 54. The relevant provisions of the CCP read as follows: Article 148 (with amendments of 21 June 2001 ) Purpose and grounds for the application of preventive measures “Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent his attempts to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the execution of procedural decisions. Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence. If a preventive measure is applicable to a suspect, he shall be charged within ten days of the imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.” Article 149 (with amendments of 21 June 2001 ) Preventive measures “The preventive measures are as follows: (1) a written undertaking not to abscond; (2) a personal surety; (3) the surety of a public organisation or labour collective; (3-1) bail; (4) remand in custody; (5) supervision by the command of a military unit. As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.” Article 150 (with amendments of 21 June 2001 ) Circumstances that shall be taken into account in choosing a preventive measure “In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged crime, the person's age, state of health, family and financial status, type of activity, place of residence and other circumstances relating to the person, shall be taken into consideration.” Article 156 (in force at the material time) The terms for holding in custody The terms for remand in custody during the investigation of criminal offences shall not be more than two months. These terms can be extended to four months by district, city or military prosecutors, prosecutors of the fleet or command garrison, or prosecutors of the same rank, if it is not possible to terminate the criminal investigation, and in the absence of any grounds to change the preventive measure. Further extension of this term to six months from the moment of arrest shall only be effected if the case is exceptionally complex, by the Prosecutor of the Republic of the Crimea, regional prosecutors, Kyiv prosecutors, military prosecutors of the district or fleet, or prosecutors equal to them in rank. Further periods of remand in custody can be extended for up to one year by the Deputy Prosecutor General of Ukraine, and up to eighteen months by the General Prosecutor. After that, no further extensions of detention on remand are allowed. The accused must then be immediately released. If it is impossible to terminate the investigation within these remand periods and there are no grounds to change the preventive measure, the General Prosecutor or his Deputy shall be entitled to remit the case to the court in that part which relates to accusations which could be proved. In relation to the incomplete investigation, the case shall be divided into separate proceedings and terminated in accordance with the general rules. The materials of the terminated part of the criminal case shall be provided to the accused and his representative for examination not later than one month before the expiry of the remand period, established by paragraph 2 of this Article. The time taken by the accused and his representative to familiarise themselves with the materials in the case shall not be taken into account in calculating the overall term of remand in custody. If the court remits the case for a new investigation, and where the term of remand in custody has ended, and an alternative preventive measure cannot be applied in the circumstances of the case, the prolongation of the detention on remand shall be effected by the prosecutor, whose task is to supervise the lawfulness of the pre-trial investigation in the case, within one month from the moment he receives the case-file. Further prolongation of the detention, before the case is remitted to the court, shall be governed by paragraphs 1, 2, and 6 of this Article.” Article 156 (with amendments of 21 June 2001 ) Periods of detention during an investigation “Detention during pre-trial investigations shall not exceed two months. In cases in which it is impossible for the investigation of the case to be completed within the period provided for by Part One of this Article and there are no grounds for discontinuing the preventive measure or substituting a less restrictive measure, the period of detention may be extended: (1) to four months - on an application approved by the prosecutor who supervises compliance with the laws by bodies of inquiry and pre-trial investigation or by the prosecutor who, or a judge of the court which, issued the order for the application of the preventive measure; (2) to nine months - in cases of serious and especially serious crimes, on an application approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of Crimea, the prosecutor of the regions, the prosecutor of the cities of Kyiv and Sevastopol and the prosecutors of equal rank, or submitted by the same prosecutor for consideration to a judge of an appellate court; (3) to eighteen months - in particularly complex cases involving especially serious crimes, on an application by the Prosecutor General of Ukraine or his Deputy, or submitted by the same prosecutor for consideration to a judge of the Supreme Court of Ukraine; In every case in which it is impossible to complete the investigation in full within the periods specified in Parts One or Two of this Article, the prosecutor supervising compliance with the law during the investigation into the case shall have the right to consent to the charge for which there is evidence being referred to the court. In such an event, the part of the case concerning uninvestigated crimes or criminal offences shall, in accordance with the requirements of Article 26 of this Code, be severed into a separate set of proceedings and completed under the general procedure. The period of detention during the investigation shall be calculated from the moment the detention is ordered and, if the detention was preceded by time spent in police custody, from the moment of arrest. The period of detention shall include any time spent by the person concerned in undergoing expert examination as an in-patient in a psychiatric medical institution of any type. In the event of repeated detention orders being made against a person in the same case, or in a case joined to it or severed from it, or of new charges being brought, previous periods of detention shall be taken into account when calculating the length of the detention. The period of detention during pre-trial investigations shall expire on the day the court receives the case-file; however, the time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case-file shall not be included in the calculation of the period for which the accused has been detained as a preventive measure. In the event that the case is withdrawn from the court by a prosecutor on the basis of Article 232 of this Code, time shall start to run again on the day the case is received by the prosecutor. In the event that the case is returned by the court to the Prosecutor for a supplementary investigation the period of detention shall be calculated from the moment the case is received by the Prosecutor and shall not exceed two months. The period specified shall be further extended by taking into account the time the accused was held in detention before the referral of the case to the court, in accordance with the procedure and within the time-limit prescribed by Part Two of this Article. Save where the period has been extended pursuant to the procedure established by this Code, in the event of the expiry of the maximum period for detention as a preventive measure allowed by Parts One and Two of this Article, the body of inquiry, the investigator, or the prosecutor shall be obliged to release the person from custody without delay. Governors of pre-trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by Parts One, Two and Six of this Article expires. They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation (Article 156 in the wording of Law No. 1960-12 of 10 December 1991, as amended by Laws Nos. 2857-12 of 15 December 1992, and 3351-12 of 30 June 1993; in the wording of Law No. 2533- III of 21 June 2001 – which entered into force on 29 June 2001 ).” Article 218 (in force at the material time) Announcing to the accused the termination of the investigation in the case and allowing him to inspect the materials in the case file “After deciding that the evidence collected in the case is sufficient for an indictment, and after complying with the terms of Article 217 of this Code (familiarisation of the victim, civil plaintiff and civil respondent with the materials in the case file), the investigator is obliged to announce to the accused that the investigation in his case has ended and that he has a right to familiarise himself with all of the materials in the case file personally and/or with the assistance of an advocate, and that he can lodge a motion to initiate an additional preliminary investigation. The investigator is obliged to explain to the accused his right to lodge petition for his case at first instance to be heard by a single judge or by a court composed of three judges. If the accused has not shown any interest in familiarising himself with the materials of the case-file with the participation of the representative, he shall be personally provided with all of the materials in the case file (for familiarisation). In the course of this familiarisation process, the accused has the right to make extracts (to copy in writing) and to lodge motions. The investigator must allow all accused persons, even if there are several in one case, to familiarise themselves with all the case-file materials. The announcement of the termination of the criminal investigation and the authorisation for the accused to familiarise himself with the case-file shall be mentioned in the verbatim record. The accused and his representative shall not be limited in the time which they require to familiarise themselves with the materials in the case file. However, if the accused and his representative intentionally delay this process, the investigator has the right, by it's a reasoned resolution, to fix a deadline for the accused to complete the familiarisation exercise. This resolution shall be approved by the prosecutor.” Article 236-3 (with amendments of 21 June 2001 ) Appeal against the prosecutor's arrest warrant “The detainee, his defender or legal representative may appeal against the prosecutor's arrest warrant to the relevant district (city) court... The appeal may be lodged directly with the court or through the administration of the pre-trial detention centre, which must send the appeal to the relevant court within twenty-four hours of its receipt.” (Article 236-3 was excluded from the CCP on the basis of the Code of Criminal Procedure (Amendments) Act of 21 June 2001 .) C. Resolution of the Plenary Supreme Court of 30 September 1994 on certain issues emerging in the course of the application by the courts of the legislation providing for an appeal against the prosecutor's arrest warrant 55. The relevant provisions of the Resolution of the Plenary Supreme Court of Ukraine read as follows: “... in accordance with Article 236-3 of the Code of Criminal Procedure, the subject of appeal shall only be the arrest warrant issued by the prosecutor for detention of the suspect or accused, and not the decision of the investigator or the body of inquiry concerning the applicable preventive measure of taking into custody; nor the decision of the court (judge) to detain the defendant.” (This resolution was annulled on the basis of the new Resolution of the Plenary Supreme Court of Ukraine of 25 April 2003 on the courts'practice of applying the preventive measure of detention and the prolongation of detention at the stages of the inquiry and pre-trial investigation.) D. Reservation contained in the instrument of ratification deposited on 11 September 1997 (period covering 11 September 1997 – 28 June 2001 ) 56. The relevant extracts from the reservation of Ukraine provide as follows: “...2. The provisions of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene paragraph 13 of Chapter XV of the Transitional Provisions of the Constitution of Ukraine and Articles 106 and 157 of the Code of Criminal Procedure of Ukraine concerning the detention of a person and the issue of an arrest warrant by a public prosecutor. Such reservations shall be in force until appropriate amendments to the Code of Criminal Procedure of Ukraine are introduced or until the adoption of the new Code of Criminal Procedure of Ukraine, but not later than 28 June 2001 ... The provisions of Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene Articles 48, 49, 50 and 51 of the Disciplinary Statute of the Armed Forces of Ukraine concerning the imposition of arrest as a disciplinary sanction.” E. Appendix to the reservation handed to the Secretary General at the time of depositing the instrument of ratification on 11 September 1997 57. The relevant extracts from the Transitional Provisions of the Constitution of Ukraine provide as follows: “13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person's home and other property, shall be retained for five years after the entry into force of the present Constitution.” 58. The relevant extracts from Article 106 of the CCP that regulate detention by a body of inquiry of a person suspected of committing an offence provide as follows: “A body of inquiry shall be entitled to detain a person suspected of committing an offence for which a custodial penalty may be imposed, subject to the existence of one of the following grounds: 1. if the person is discovered whilst committing an offence or immediately after committing one; 2. if eye-witnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home. If there are other data which constitute grounds for suspecting the person of committing an offence, he may be detained only if he attempts to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established. For each case of detention of a person suspected of committing an offence, the body of inquiry shall be required to draw up a record setting out the grounds, the reasons, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before being questioned for the first time, in accordance with the procedure provided for in Part 2 of Article 21 of the present Code. The body of inquiry shall also be required to notify the public prosecutor of the detention in writing within twenty-four hours and, on his request, give him the documents constituting the grounds for detention. The record of detention shall be signed by the person who drew it up and by the detained person. Within forty-eight hours of receipt of the notification of detention, the public prosecutor shall authorise the person detained to be taken into custody or order his release. The body of inquiry shall inform the suspected person's family of his detention if his place of residence is known.” 59. The relevant extracts from Article 157 of the CCP, which set out the specific duties of a public prosecutor when issuing a warrant for arrest, provide as follows: “The public prosecutor shall issue a warrant for the arrest of a suspect or accused subject to the existence of the grounds prescribed by law. When deciding whether to issue a warrant for arrest, the public prosecutor shall be required to study conscientiously all the relevant documents and, where necessary, question the suspect or accused personally. In the case of a suspect or accused who has not attained the age of majority, such questioning shall be mandatory. The right to issue a warrant for the arrest of a person shall be vested in the Prosecutor General of Ukraine, the public prosecutors of the Republic of the Crimea, the regional prosecutors, the prosecutors of the cities of Kyiv and Sevastopol, and other equal-ranking prosecutors. The same right shall also be vested in the deputy public prosecutors of towns and districts with a population exceeding 150,000, unless otherwise stipulated in a special order of the Prosecutor General of Ukraine .” F. Observance of human rights in preliminary detention facilities. Extracts from the reports of the Commissioner for Human Rights of the Parliament of Ukraine of 2001 (the first annual report) and 2002 (the second annual report) 60. The relevant extracts from Chapters 4.4-4.5 of the first annual report provide as follows: “... The situation in investigation wards is perhaps the worst, [due to] their overcrowding and abnormal conditions of custody. The number of suspects in the cells of investigation wards far exceeds normal sanitary standards. By late December 1999 Ukraine's investigation wards had available space for 32,800 detainees, but in reality held 44,700. The gravest situation was registered in the Autonomous Republic of Crimea where 1,439 detainees were in custody without sufficient space; in Donetsk and Kharkiv the same circumstances affected 1,300 detainees (in each city), 1,135 in Kryviy Rig, 1,000 in Luhansk, and 714 in Kyiv and Odessa (each). Thousands of detainees do not have personal bunks and are forced to take it in turns to sleep. This has been causing conflicts that are accompanied by injuries, physical reprisals, violence and other illegal actions. ... The unsanitary conditions in pre-trial detention facilities contribute to the spread of epidemic and parasitic diseases, such as tuberculosis, pediculosis and dysentery. In 1999 they caused the death of 326 detainees, or twice as many as in 1998. Inadequate nutrition is the cause of chronic gastro-intestinal disturbances and dystrophy. In the pre-trial detention facilities the regime of detention for suspects whose guilt has yet to be established is much more severe than in penitentiary institutions. In most cases the suspects are denied the opportunity to meet with relatives, to work and provide assistance to families; they are actually isolated from the outside world and have no access to the daily press and other mass media. ... The inspections of the Commissioner proved that on average people are held [in detention] for six months while courts delay processing their cases for unjustifiably long periods. Every year the statutory time for considering criminal cases is violated in relation to 10,000 people. Of the persons who are detained in custody to date 46% (or 21,000) are detained under the courts'responsibility; in some detention centres this category of detainees exceeds 90%, although 10 years ago they accounted for only 18-20%. ... Above everything else, this is caused by the unjustifiably widespread practice of pre-trial detention on formal grounds. Of the 112,600 arrested persons 15,000 (13%) were released from investigation wards in 1998, and of these every seventh arrested person was given a non-custodial sentence. Under the transitional provisions of the Constitution, there still exists the procedure of arresting and taking people into custody on the basis of the sanction issued by the public prosecutor. The introduction of judicial control over detention and prolongation of the period of custody has had no practical impact... Some legislation which is inconsistent with the provisions of the Constitution and international human-rights standards sets unjustifiably long terms of pre-trial detention. Owing to strictly ministerial interests, these terms were increased to a year and a half, from which is excluded the time taken by detainees and their lawyers to familiarise themselves with the case-file. The lack of an organised system of pre-trial investigation infringes the terms of detention of tens of thousands of persons. The legislation in force does not establish any restrictions whatsoever as to the maximum period of detention once the case is referred for consideration on the merits. For this reason defendants have to wait for months and sometimes years for a hearing or completion of the judicial examination.” 61. The second annual report of 2002 confirmed the first as regards the gross violations of the human rights of the detainees because of their conditions of detention, severe overcrowding, lack of adequate medical treatment and assistance, inadequate nourishment, and the inadequate financing of the needs of the pre-trial detention facilities. The poor hygienic and sanitary conditions of detention led to the spread of infectious diseases and in particular skin diseases. It mentioned for instance that in 1999 only 19.7% of the necessary food supplies were financed from the State budget (12.7% in 2000), and 6.7% of the medical supplies (12.7% in 2000). The average medical expenditure per person was UAH 18.7 in 2000 (compared to the required amount of UAH 220) and UAH 20.7 in 2001 (compared to the required amount of UAH 245.2). G. The Decree of the Ministry of Internal Affairs of 4 March 1992 No. 122 on the approval of the instructions concerning the conditions of detention and force-feeding of persons who refuse to eat while in preliminary detention, penitentiary institutions and medical-labour facilities (extracts) 62. The relevant provisions of the Decree of 4 March 1992 read as follows: “...1.2. Upon discovery of the detainee's refusal to take food, the head of the institution or the person acting on his behalf must interview the detainee within twenty-four hours in order to document the reasons for the refusal. He shall also inform the authorities responsible for this person's detention and the prosecutor supervising the execution of the judicial decisions in criminal cases and, in the event of serious grounds for the refusal to eat, shall take appropriate measures to satisfy the lawful demands of the detainee. ...1.3. Within twenty-four hours of the refusal of the detainee to take food, the head of the institution or the person acting on his behalf shall order the placement of the detainee in a separate cell, where he/she shall generally be held in isolation from other detainees and be kept under constant supervision. ...1.4. The detainee shall be provided with breakfast, lunch and supper in accordance with the envisaged timetable and the established nutritional norms. In the event of a refusal to eat, it shall be removed after two hours; this shall be noted in the record of the food taken by the detainee. 1.5. Within the time-period established by the administration of the institution, and taking into account the particular circumstances, but not more than three days from the time of the refusal to take food, the person shall undergo a compulsory medical examination during which a doctor shall explain the negative consequences of the hunger strike for the detainee's health. On-going and emergency medical treatment shall be provided to the detainee unless there is a need to admit him/her as an in-patient... 1.7. Where the refusal to take food is not a result of a disease or illness, the representatives of the institution must continuously explain to the person the harmful effect that a lack of food inflicts on the body. 1.9. The force-feeding of a detainee on hunger strike shall be a measure of last resort aimed at preserving life and may only be used where the educational work and other measures of influence have had no effect on the detainee, and his/her further refusals to take food are endangering his/her life. The decision to force-feed shall be adopted by the head of the institution, or the person acting on his behalf, on the basis of a written report by the medical commission establishing a life-threatening decline in the state of health of a detainee on hunger strike... The prosecutor supervising the lawfulness of the execution of judgments in criminal cases shall be informed about the decision to force-feed the detainee. The detention centre's doctor shall determine the length of time necessary to force-feed the detainee, taking into account his/her general state of health. The doctor shall decide on the content of the food in accordance with the daily food ration composed of different products. The doctor shall make a note in the medical file of the detainee on hunger strike at the time of the force-feeding, mentioning the date, components and quantity of the food; the surname and rank of the person who administered the force-feeding shall also be noted... 2. The procedure for force-feeding a detainee refusing to take food 2.1. Force-feeding shall be administered in the presence of one of the administrators of the institution, the doctor, a member of the medical staff and the necessary number of junior inspectors. Before beginning the force-feeding, the doctor shall explain to the detainee the risks that threaten his/her health and the necessity of taking food. If the detainee refuses the force-feeding, he/she can be handcuffed, and the junior inspectors shall hold him in such a position as is necessary for this procedure. The force-feeding shall be conducted by a member of the medical staff under the doctor's supervision, taking into account all the measures necessary to avoid possible injuries and accidents. In the course of this procedure the mouth of the detainee shall be opened and held open by a mouth-widener ( роторозширювач ). A medical tube with a funnel on the free end, cooled down after having been boiled, but soft, has to be placed through the mouth opening and the pharynx into the alimentary canal ( oesophagus ). In the course of this procedure the doctor has to make sure that the tube does not get into the trachea. If the position of the tube is correct the member of the medical staff shall pour into the can a small quantity of cooled boiled water and then the food. 2.2. The medical staff must have with them the necessary medical supplies and medicines for providing emergency medical aid in the event of injuries that might occur in the course of force-feeding. 2.3. If the state of health of the detainee on hunger strike improves, the force-feeding shall be suspended and this shall be noted in the medical file of the detainee; a reasoned conclusion shall be drawn up by a doctor.” III. RELEVANT INTERNATIONAL REPORTS CONCERNING FORCE-FEEDING A. Committee of Ministers'Recommendation No. R (87) 3 on the European Prison Rules (adopted by the Committee of Ministers on 12 February 1987 at the 404th meeting of the Ministers'Deputies) 63. The relevant extracts from the European Prison Rules read as follows: “... Discipline and punishment Instruments of restraint 39. The use of chains and irons shall be prohibited. Handcuffs, restraint ‑ jackets and other body restraints shall never be applied as a punishment. They shall not be used except in the following circumstances: ...b. on medical grounds, by direction and under the supervision of the medical officer; c. by order of the director, if other methods of control fail, in order to protect a prisoner from self ‑ injury, ... 40. The patterns and manner of use of the instruments of restraint authorised in the preceding paragraph shall be decided by law or regulation. Such instruments must be applied no longer than is strictly necessary.” B. Recommendation No. R (98) 7 of the Committee of Ministers to Member States concerning the ethical and organisational aspects of health care in prison (adopted by the Committee of Ministers on 8 April 1998, at the 627 th meeting of the Ministers'Deputies) 64. The relevant extracts from the Recommendation of the Committee of Ministers provide as follows: “... Referring to the specific declarations of the World Medical Association (WMA) concerning medical ethics, in particular the Declaration of Tokyo (1975), the Declaration of Malta on hunger strikers (1991) and the Statement on body searches of prisoners (1993); ... C. Patient's consent and confidentiality ... 14. ... The indication for any medication should be explained to the inmates, together with any possible side effects likely to be experienced by them. 15. Informed consent should be obtained in ... situations when medical duties and security requirements may not coincide, for example refusal of treatment or refusal of food. 16. Any derogation from the principle of freedom of consent should be based upon law and be guided by the same principles which are applicable to the population as a whole. ... 24. It should also imply [that a doctor must be] advising the prison management on matters concerned with nutrition or the environment within which the prisoners are required to live, as well as in respect of hygiene and sanitation. E. Refusal of treatment, hunger strike 60. In the case of a refusal of treatment, the doctor should request a written statement signed by the patient in the presence of a witness. The doctor should give the patient full information as to the likely benefits of medication, possible therapeutic alternatives, and warn him/her about risks associated with his/her refusal. It should be ensured that the patient has a full understanding of his/her situation. ... 61. The clinical assessment of a hunger striker should be carried out only with the express permission of the patient, unless he or she suffers from serious mental disorders which require the transfer to a psychiatric service. 62. Hunger strikers should be given an objective explanation of the harmful effects of their action upon their physical well-being, so that they understand the dangers of prolonged hunger striking. 63. If, in the opinion of the doctor, the hunger striker's condition is becoming significantly worse, it is essential that the doctor report this fact to the appropriate authority and take action in accordance with national legislation (including professional standards).” C. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment [“CPT”] 65. The relevant extracts from Chapter III of the CPT Standards of “Health care services in prisons” [CPT/ Inf /E (2002) 1, Rev. 2004] and extracts from the 3rd General Report [CPT/ Inf (93) 12] read as follows: “46. Patients should be provided with all relevant information (if necessary in the form of a medical report) concerning their condition, the course of their treatment and the medication prescribed for them. Preferably, patients should have the right to consult the contents of their prison medical files, unless this is inadvisable from a therapeutic standpoint. They should be able to ask for this information to be communicated to their families and lawyers or to an outside doctor. 47. Every patient capable of discernment is free to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances which are applicable to the population as a whole. A classically difficult situation arises when the patient's decision conflicts with the general duty of care incumbent on the doctor. This might happen when the patient is influenced by personal beliefs ( eg. refusal of a blood transfusion) or when he is intent on using his body, or even mutilating himself, in order to press his demands, protest against an authority or demonstrate his support for a cause. In the event of a hunger strike, public authorities or professional organisations in some countries will require the doctor to intervene to prevent death as soon as the patient's consciousness becomes seriously impaired. In other countries, the rule is to leave clinical decisions to the doctor in charge, after he has sought advice and weighed up all the relevant facts.” 66. The relevant extracts from the Report of the CPT on a visit to Ukraine from 24 November to 6 December 2002 read as follows: “...110. At Zhytomyr Prison No. 8, the building reserved for women and minors (No. 2) offered the best material conditions of the establishment. All the cells were clean and well maintained, properly equipped, benefited from good natural and artificial lighting, and had toilets that were partitioned off. In many cells, the living space, although far from ideal, was greater than that found in the other detention areas. For example, a cell measuring 29.7 m² accommodated seven women. Among the minors, a 29 m² cell accommodated three boys; it was, however, designed for eight, which is excessive. Generally speaking, the delegation observed that the potential occupancy rates of the cells in the building allowed for a living space of only 2.5 to 2.8 m² per person. 111. The CPT welcomes the fact that, in the parts of building No. 1 reserved for remand prisoners, administrative prisoners and prisoners subject to the “ Tyurma ” regime, there was proper access to daylight and fresh air, except in certain cells where the windows were still fitted with obstructive devices (for example, wire mesh). Otherwise, material conditions varied. Many of the cells visited, although modestly equipped, were properly maintained and clean. Others, however, had been damaged by damp and were dirtier, with toilets in relatively poor condition, rusty beds and very modest bedding infested with cockroaches and other vermin. Given the number of prisoners they accommodated at the time of the visit, the living space in certain cells could be considered tolerable or even acceptable. For example, among the remand prisoners, a 42 m² cell accommodated twelve prisoners, a 46 m² cell housed thirteen prisoners, a 19 m² cell was occupied by four people and a 13 m² cell by three. But here again, the living space was completely taken up by surplus beds. Finally, heating was, generally speaking, a problem, as the temperature was barely above 18 o. 112. The prison administration made real efforts to provide those prisoners who needed them with basic essentials (hygiene and cleaning products and, if necessary, extra clothing/shoes). Some women complained, however, that they were unable to obtain the special hygiene products they needed (sanitary towels/tampons). The delegation raised the issue with the prison governor, who gave assurances that the situation would be remedied. The CPT would like to obtain confirmation that the problem has now been resolved. 113. In SIZO No. 21 in Odessa, the situation of overcrowding, exacerbated by generally precarious material conditions, could legitimately be considered to amount to inhuman and degrading treatment. The prisoners were crammed into a tiny living space. For instance, there were up to six prisoners in cells measuring 7 to 8 m², up to fifteen in 18 m² and up to thirty-seven (with forty beds) in 78 m². According to information gathered by the delegation, some parts of the prison had apparently been even more overcrowded in mid-November 2002. For instance, up to thirty-two prisoners had been placed in cells measuring 18 m² in the admissions unit, where they had had to share ten beds. Most of the cells were very dilapidated, with damp-ridden walls and ceilings. The facilities were in a bad state of repair, the bedding was often dirty and inadequate (prisoners had to rely on relatives for sheets and blankets), and the toilets were not properly partitioned off, if at all. Moreover, in many cells, the toilets did not have a proper flush, which added to the ambient insalubrity. Worst of all, the cells were teeming with cockroaches. In certain cells, prisoners were obliged to put blankets over the windows to keep out the draught, as panes of glass were missing. In addition, in many cells, the heating left something to be desired, as the temperature was only 17 o. In fact, the only positive feature was that the cells all had proper access to daylight and adequate artificial lighting. 114. The delegation received numerous complaints about the lack of basic hygiene and cleaning products, including toilet paper. In addition, prisoners had to wash their belongings and sheets and blankets in their cells with the means at their disposal, under highly dubious conditions of hygiene. Furthermore, in view of the small number of showers per prison section (for example, two showers for over 170 prisoners) and their very dilapidated state, prisoners had great difficulty in maintaining satisfactory personal hygiene. 115. In their letter of 15 April 2003, the Ukrainian authorities stated that, in order to reduce overcrowding, it was planned to build a new building with a capacity of 250 places and to transfer a number of prisoners to other remand establishments in the region. They also referred to other steps taken to remedy the hygiene problems observed (such as the provision of disinfectants and the washing of the bedding in the SIZO laundry) and indicated that prisoners were now provided with the necessary hygiene products. 116. Although the visit to Colony No. 14 focused on particular aspects ... the delegation noted that in the two sections (4 and 7) which it visited the dormitories were well-lit and ventilated, and equipped with beds with full bedding, bedside tables and storage space. The sanitary annexes were clean and relatively well maintained. The dormitories were crowded. In section 4, for instance, dormitories measuring about 61 m² were accommodating up to 35 people; however, this was somewhat offset by the fact that prisoners could move about freely during the daytime in their section and had access to an exercise yard. In this establishment, the delegation received numerous complaints about the lack of warm winter clothes (coats and hats). The matter was raised with the prison governor who assured the delegation that there were sufficient supplies to meet prisoners'needs. The CPT wishes to obtain confirmation that the prisoners in Colony No. 14 have clothes suitable for the weather conditions. In the light of the above, the CPT recommends that: in Prison No. 8: - the necessary repairs to building No. 1 be carried out so that the material conditions equal those in building No. 2, reserved for women and minors, in all respects; - the cells be adequately heated; in SIZO No. 21: - the material shortcomings observed be remedied, in order to ensure that: - every prisoner has his own bed with full and clean bedding; - the toilets in all the cells are properly partitioned off and have a working flush; - the windows in all the cells have glass panes in them; - the cells are adequately heated; - the showers are in a satisfactory state of repair and that, as soon as possible, the number of showers is increased; - the scheduled construction of the new building with a capacity of 250 places is completed; - the occupancy rates in the cells/dormitories of the three establishments be reduced, the objective being to provide 4 m² of living space per prisoner.” 67. The relevant extracts from the Report of the CPT on a visit to Turkey [CPT/ Inf (2001) 31] read as follows: “1. Management of hunger strikers ... The delegation had earlier been informed that these directives indicated that the management of hunger strikers should be based on a doctor/patient relationship. In fact, they deliver the clear message that “The duty of health workers is to assist in the continuation of life. The right to life, the most basic of the rights and freedoms, may not be limited by any norm or criterion.” Turning to specifics, it is stipulated that “From the instant organ deterioration is noted, total parenteral nutrition is to be administered”. At the time of the December 2000/January 2001 visit, no prisoner had yet reached a stage where it was necessary to take a decision on possible artificial feeding against his/her wishes. However, cases of artificial feeding have subsequently occurred. Ministry of Health officials informed the CPT's delegation during the April 2001 visit that they were not aware of any cases of forced-feeding of prisoners who were conscious, but that prisoners had been artificially fed after losing consciousness. 33. As was acknowledged in the preliminary observations dated 29 January 2001, the issue of the artificial feeding of a hunger striker against his/her wishes is a delicate matter about which different views are held, both within Turkey and elsewhere. The CPT understands that the World Medical Association is currently reviewing its policy on this subject. To date, the CPT has refrained from adopting a stance on this matter. However, it does believe firmly that the management of hunger strikers should be based on a doctor/patient relationship. Consequently, the Committee has considerable reservations as regards attempts to impinge upon that relationship by imposing on doctors managing hunger strikers a particular method of treatment.” D. World Medical Association Declaration of Tokyo, 1975 (Guidelines for Medical Doctors Concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment) 68. The relevant extract from the 1975 Declaration reads as follows: “...5. Where a prisoner refuses nourishment and is considered by the doctor as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent doctor. The consequences of the refusal of nourishment shall be explained by the doctor to the prisoner.” E. World Medical Association Declaration on Hunger Strikers ( adopted by the 43rd World Medical Assembly, Malta, November 1991, and editorially revised at the 44th World Medical Assembly Marbella, Spain, September 1992) 69. The Declaration of the World Medical Association on Hunger Strikers reads as follows: “PREAMBLE 1. The doctor treating hunger strikers is faced with the following conflicting values: 1.1. There is a moral obligation on every human being to respect the sanctity of life. This is especially evident in the case of a doctor, who exercises his skills to save life and also acts in the best interests of his patients (Beneficence). 1.2. It is the duty of the doctor to respect the autonomy which the patient has over his person. A doctor requires informed consent from his patients before applying any of his skills to assist them, unless emergency circumstances have arisen in which case the doctor has to act in what is perceived to be the patient's best interests. 2. This conflict is apparent where a hunger striker who has issued clear instructions not to be resuscitated lapses into a coma and is about to die. Moral obligation urges the doctor to resuscitate the patient even though it is against the patient's wishes. On the other hand, duty urges the doctor to respect the autonomy of the patient. 2.1. Ruling in favour of intervention may undermine the autonomy which the patient has over himself. 2.2. Ruling in favour of non-intervention may result in a doctor having to face the tragedy of an avoidable death. 3. A doctor/patient relationship is said to be in existence whenever a doctor is duty bound, by virtue of his obligation to the patient, to apply his skills to any person, be it in the form of advice or treatment. This relationship can exist in spite of the fact that the patient might not consent to certain forms of treatment or intervention. Once the doctor agrees to attend to a hunger striker, that person becomes the doctor's patient. This has all the implications and responsibilities inherent in the doctor/patient relationship, including consent and confidentiality. 4. The ultimate decision on intervention or non-intervention should be left with the individual doctor without the intervention of third parties whose primary interest is not the patient's welfare. However, the doctor should clearly state to the patient whether or not he is able to accept the patient's decision to refuse treatment or, in case of coma, artificial feeding, thereby risking death. If the doctor cannot accept the patient's decision to refuse such aid, the patient would then be entitled to be attended by another physician. GUIDELINES FOR THE MANAGEMENT OF HUNGER STRIKERS Since the medical profession considers the principle of sanctity of life to be fundamental to its practice, the following practical guidelines are recommended for doctors who treat hunger strikers: 1. DEFINITION A hunger striker is a mentally competent person who has indicated that he has decided to embark on a hunger strike and has refused to take food and/or fluids for a significant interval. 2. ETHICAL BEHAVIOUR 2.1. A doctor should acquire a detailed medical history of the patient where possible. 2.2. A doctor should carry out a thorough examination of the patient at the onset of the hunger strike. 2.3. Doctors or other health care personnel may not apply undue pressure of any sort on the hunger striker to suspend the strike. Treatment or care of the hunger striker must not be conditional upon him suspending his hunger strike. 2.4. The hunger striker must be professionally informed by the doctor of the clinical consequences of a hunger strike, and of any specific danger to his own particular case. An informed decision can only be made on the basis of clear communication. An interpreter should be used if indicated. 2.5. Should a hunger striker wish to have a second medical opinion, this should be granted. Should a hunger striker prefer his treatment to be continued by the second doctor, this should be permitted. In the case of the hunger striker being a prisoner, this should be permitted by arrangement and consultation with the appointed prison doctor. 2.6. Treating infections or advising the patient to increase his oral intake of fluid (or accept intravenous saline solutions) is often acceptable to a hunger striker. A refusal to accept such intervention must not prejudice any other aspect of the patient's health care. Any treatment administered to the patient must be with his approval. 3. CLEAR INSTRUCTIONS The doctor should ascertain on a daily basis whether or not the patient wishes to continue with his hunger strike. The doctor should also ascertain on a daily basis what the patient's wishes are with regard to treatment should he become unable to make an informed decision. These findings must be recorded in the doctor's personal medical records and kept confidential. 4. ARTIFICIAL FEEDING When the hunger striker has become confused and is therefore unable to make an unimpaired decision or has lapsed into a coma, the doctor shall be free to make the decision for his patient as to further treatment which he considers to be in the best interest of that patient, always taking into account the decision he has arrived at during his preceding care of the patient during his hunger strike, and reaffirming article 4 of the preamble of this Declaration. 5. COERCION Hunger strikers should be protected from coercive participation. This may require removal from the presence of fellow strikers. 6. FAMILY The doctor has a responsibility to inform the family of the patient that the patient has embarked on a hunger strike, unless this is specifically prohibited by the patient.” THE LAW I. THE COURT'S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS A. Arguments of the parties 1. The applicant 70. The applicant argued that he had proved that he was subjected to inhuman and degrading treatment while he was force-fed and that the conditions of his detention, particularly between 28 October 1998 and 23 February 2000 (the date of his release from custody), were contrary to Article 3 of the Convention. He requested the Court to find the State responsible under Article 3. The applicant further mentioned that he had been held in detention from 16 October 1998 to 13 August 1999 without any proper sanction. He alleged an infringement of Article 5 §§ 1(c) and 3 of the Convention. 2. The Government 71. The Government denied that the applicant was force-fed by unqualified personnel and handcuffed to a heating facility in the presence of a guard dog. Furthermore, they denied that the applicant was placed in the Temporary Isolation Facility in SIZO No. 1 of the Kyiv Region from 10 January to 7 February 2000. They have not provided any other information with regard to the periods during which the applicant was in disciplinary detention. They further evaded the issue as to the conditions of the applicant's detention in the isolation cell and whether there was any sanction for the applicant's continued detention from 7 February to 23 February 2000. B. General principles 72. The Court reiterates that, in assessing evidence, it adopts the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey, no. 25656/94, § 264, ECHR 2002). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161). 73. The Court is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom ( dec .), no. 28883/95, 4 April 2000 ). Where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, p. 17, § 29). Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Klaas, cited above, p. 18, § 30). C. The Court's considerations under Article 38 § 1 (a) 74. Article 38 § 1 (a) of the Convention provides: “If the Court declares the application admissible, it shall (a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities...” 75. The Court reiterates that it is of utmost importance for the effective operation of the system of individual petition instituted by Article 34 that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see, as the most recent authority, Orhan, cited above, § 266, and Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV; Velikova v. Bulgaria, no. 41488/98, § 77, ECHR 2000 ‑ VI). It is inherent in proceedings relating to cases of this nature, where an individual applicant accuses State agents of violating his rights under the Convention, that in certain instances solely the respondent Government have access to information capable of corroborating or refuting these allegations. A failure on a Government's part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well- foundedness of the applicant's allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (see Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000-VI). The same applies to delays by the State in submitting information which prejudices the establishment of facts in a case (see Orhan, cited above, § 266). 76. In the light of the above principles and having regard to the Government's obligations under Article 38 § 1 (a) of the Convention, the Court has examined the Government's conduct in the present case in particular in regard to the following matters in establishing the facts of the present case: - the failure of the Government to provide a written medical report and the decision of the SIZO's director on the basis of which the applicant was subjected to force-feeding; - the failure of the Government to provide thorough and detailed information as to the legal basis of the applicant's continued detention throughout the whole period he was detained; - the failure of the Government to provide detailed information and to comment on the conditions of the applicant's detention in the isolation cell and his general conditions of detention, his medical treatment and the medical assistance provided to him. 77. The Court concludes that the Government have failed to provide any convincing explanation for their refusal to comment on particular questions raised by it at the stage of communication and later at the admissibility stage or to provide relevant documents and decisions and medical reports in the applicant's case. The Court therefore considers that it can draw inferences from the Government's conduct in the instant case (see Velikova and Orhan, cited above, §§ 77 and 274, respectively). Bearing in mind the difficulties arising from the establishment of the facts in the present case and in cases similar to it, and in view of the importance of a respondent Government's cooperation in Convention proceedings, the Court finds that the Government have failed to furnish all necessary facilities to the Court in its task of establishing the facts within the meaning of Article 38 § 1 (a) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 78. The applicant complained that he had been held in detention and in particular in the isolation cell in the Temporary Investigative Isolation Unit of Kyiv Region (SIZO No. 1 of the Kyiv Region) despite the fact that he had been suffering from a number of chronic diseases. The applicant also maintained that he had been deprived of adequate medical treatment while remanded in custody and that the conditions of detention (hygiene, bedding and other conditions) had been unsatisfactory. The applicant alleged that he had been force-fed while on hunger strike, without any medical necessity being established by the domestic authorities, which had caused him substantial mental and physical suffering. In particular, he alleged that he had been handcuffed to a heating appliance in the presence of guards and a guard dog (in his further complaints he did not mention the guard dog), and had been held down by the guards while a special medical tube was used to feed him. He referred in this respect to Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. General principles enshrined in the case-law 79. As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 80. According to the Court's case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of this provision (see Peers v. Greece, no. 28524/95, §§ 67-68 and 74, ECHR 2001-III, and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII). 81. The Court has consistently stressed that the suffering and humiliation involved must in any event exceed the inevitable element of suffering or humiliation connected with a legitimate deprivation of liberty. Nevertheless, in the light of Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, the person's health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI), with the provision of the requisite medical assistance and treatment (see, mutatis mutandis, the Aerts v. Belgium judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq.). When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001 ‑ II). B. Scope of the issues for consideration 82. The Court notes that the applicant's complaints under Article 3 of the Convention mainly concern three issues: - first, whether the conditions of the applicant's detention were compatible with that provision; - secondly, whether the applicant's force-feeding while he was on hunger strike amounted to inhuman or degrading treatment or punishment or torture; and - thirdly, whether the applicant was provided with the necessary medical treatment and assistance while being held in detention and while on hunger strike. 1. Conditions of the applicant's detention a. The parties'submissions 83. In his initial submissions to the Court of 7 February 2000, the applicant submitted that he had been placed in a cell of seven square metres with twelve other detainees. There had been no drinking water in the cell and no access to a shower or water. The cell had been infested with bedbugs and head lice, which had eventually caused the applicant's acute skin diseases ( microbic eczema and scabies ). 84. The applicant submitted further that on 1 April 1999 he had been placed in the isolation cell of the detention centre for a period of ten days while he was still on hunger strike. The applicant maintained that the conditions there involved his total isolation in a cell of seven square metres that was situated in the basement of an old nineteenth century building. The cell had been damp, with wet concrete walls that had a rough finish. The temperature in the cell had been as low as 15ºC. The floor had also been made of concrete. The bed was made up at 11 p.m. and locked up to the wall at 7 a.m. There had been a small table and chair nailed to floor. The cell had not been ventilated and the applicant had not been allowed to have regular outdoor walks. The cell had had no toilet and the water had been turned on several times a day only on demand. He alleged that he had been unable to withstand these conditions and had therefore had to cut his wrists in order to be placed back in the detention cell for hunger strikers. 85. The Government made no comment with regard to the applicant's conditions of detention in SIZO No. 1 of the Kyiv Region. Neither did they comment on the conditions of the applicant's detention in the isolation cell. b. The Court's assessment 86. As to the conditions of detention, the excessive number of persons in the cell and the lack of proper hygiene, ventilation, sunlight, daily walks, appropriate clean bedding or clothes, the Court has examined them as a whole on the basis of the applicant's submissions and the lack of relevant comments from the Government. It notes that it cannot establish with certainty the conditions of the applicant's detention, which occurred quite some time ago. However, taking into account that the applicant's submissions are consistent, thorough and correspond in general to the inspections of the pre-trial detention centres in Ukraine conducted by the Committee for the Prevention of Torture (see paragraph 66 above) and the Commissioner of Human Rights of the Ukrainian Parliament (paragraphs 60-61 above), and that the Government have made no comment on these submissions, the Court concludes that the applicant was detained in unacceptable conditions and that such detention amounted to degrading treatment in breach of Article 3 of the Convention. The Court further finds that the applicant's situation was aggravated by the fact that he was subjected to disciplinary punishment in an isolation cell of the detention centre in conditions that were totally unacceptable under Article 3 of the Convention (see paragraph 84 above). 87. Moreover, the Court notes that the medical reports submitted by the parties show that in the course of his detention the applicant contracted various skin diseases (in particular scabies and eczema ). Clearly the applicant's health significantly deteriorated, judging by his medical examinations of 8 May 1998, 2 June and 20 July 1998, and his further placement in hospital after his release on 23 February 2000. While it is true that the applicant received some medical treatment for these diseases, their initial contraction, recurrence, aggravation and the applicant's further medical treatment after release, demonstrate that he was detained in an unsanitary environment, with no respect for basic hygiene. These conditions had such a detrimental effect on his health and well-being that the Court considers that they amounted to degrading treatment (cf. Kalashnikov v. Russia, no. 47095/99, § 98, ECHR 2002 ‑ VI). 88. In the light of the above, the Court concludes that there has been a violation of Article 3 of the Convention. 2. Force-feeding of the applicant a. The parties'submissions 89. The applicant submitted that the manner in which he was force-fed amounted to torture. Furthermore, he alleged that the procedure set out in the internal prison instructions was not followed by the prison authorities. He further submitted that no medical commission had met to examine his state of health in order to decide whether force-feeding was necessary from a medical point of view. The applicant alleged that force had been used to feed him. He also mentioned that he had been placed in an isolation cell on 1 April 1999 as a punishment for continuing his hunger strike. 90. The applicant further maintained that he had been force-fed by other detainees, who had already been convicted, and not by medical staff. In the course of the force-feeding, which occurred five times a week, he had frequently been handcuffed to a chair or a heating facility and forced to swallow a rubber tube that was connected to a bucket with a special nutritional mixture. 91. The Government submitted that the force-feeding had been conducted strictly in accordance with medical necessity in order to preserve the applicant's life. They further maintained that his state of health had been satisfactory in relation to his ability to be held in detention and to participate in investigative proceedings. Moreover, they submitted that the applicant had been under constant medical supervision as he had been examined practically every two or three days by one or more medical doctors and brought to a hospital for extensive examinations on two occasions. The force-feeding and treatment had been ordered and administered by medical professionals. They alleged that it had not been shown that the feeding and medical treatment had resulted in any aggravation of the applicant's health. As proof of their submissions, they provided signed reports from the medical officers, dated 2004, and the staff of SIZO No. 1 of the Kyiv Region of the Department for Enforcement of Sentences, where the applicant had been held in detention, and who had allegedly administered the force-feeding of the applicant. 92. The applicant alleged that the written reports of the medical staff of SIZO No. 1 had been written under pressure and instructions from the State Department for Enforcement of Sentences, and were not truthful. In addition, the applicant provided a copy of his diary and a written statement of his cell mate, Mr Koval [1], who insisted in particular that the applicant had been fed by other detainees, albeit under the supervision of medical staff, and that the nutritional mixture had been given to the applicant through a rubber hose from a twelve-litre bucket. Mr Koval alleged that the applicant had been handcuffed when force-fed. b. The Court's assessment 93. The Court notes that in previous case-law the Commission held that the “forced- feeding of a person does involve degrading elements which in certain circumstances may be regarded as prohibited by Article 3 of the Convention”. When, however, as in the present case, a detained person maintains a hunger strike this may inevitably lead to a conflict between an individual's right to physical integrity and the High Contracting Party's positive obligation under Article 2 of the Convention – a conflict which is not solved by the Convention itself” (see X v. Germany (1984) 7 EHRR 152). The Commission reiterated that “under German law this conflict ha[d] been solved in that it [was] possible to force-feed a detained person if this person, due to a hunger strike, would be subject to injuries of a permanent character, and the forced - feeding [was] even obligatory if an obvious danger for the individual's life exist[ ed ]. The assessment of the above-mentioned conditions [was] left for the doctor in charge but an eventual decision to force-feed [could] only be carried out after judicial permission ha[d] been obtained” (ibid.). The Commission also found that the applicant's allegations of being subjected to ill-treatment while being force-fed on hunger strike were unsubstantiated, as the applicant had failed to prove that the manner of his force-feeding amounted to torture, inhuman or degrading treatment or punishment (see Petar Ilijkov v. Bulgaria, no. 33977/96, § 1, Commission decision of 20 October 1997). It further had due regard to the Recommendations of the Committee of Ministers, the Reports of the CPT and the World Medical Association in respect of the force-feeding of detainees (see paragraphs 64-65 and 68-69 above). 94. The Court reiterates that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist (see Herczegfalvy v. Austria, judgment of 24 September 1992, Series A no. 244, p. 26, § 83). Furthermore, the Court must ascertain that the procedural guarantees for the decision to force-feed are complied with. Moreover, the manner in which the applicant is subjected to force-feeding during the hunger strike shall not trespass the threshold of a minimum level of severity envisaged by the Court's case law under Article 3 of the Convention. The Court will examine these elements in turn. 95. At the outset, the Court notes that the applicant did not claim that he should have been left without any food or medicine regardless of the possible lethal consequences. However, he claimed that there had been no medical necessity to force-feed him, as there had been no medical examinations, relevant tests or other documents that sufficiently proved that necessity. He claimed that the decision to subject him to force-feeding had been based on the analysis of the acetone level in his urine. He further maintained that the force-feeding had been aimed at his humiliation and punishment, as its purpose had been to make him stop the hunger strike and, in the event of his refusal, to subject him to severe physical suffering. 96. The Court observes the statement of the Government with regard to the satisfactory state of health of the applicant in detention (see paragraph 91 above). In view of the failure of the Government to provide “the written report of the medical commission establishing a life-threatening decrease in the state of health of the applicant” and “the decision of the head of the [detention] institution” that were obligatory under the decree of 4 March 1992 (see paragraph 62 above), the Court concludes that the Government have not demonstrated that there was a “medical necessity” established by the domestic authorities to force-feed the applicant. It can only therefore be assumed that the force-feeding was arbitrary. Procedural safeguards were not respected in the face of the applicant's conscious refusal to take food, when dispensing forced treatment against his will. Accordingly, it cannot be said that the authorities acted in the applicant's best interests in subjecting him to force-feeding. 97. As to the manner in which the applicant was fed, the Court assumes, in view of the submissions of the parties, that the authorities complied with the manner of force-feeding prescribed by decree (see paragraph 62 above). However, in themselves the restraints applied – handcuffs, a mouth-widener ( роторозширювач ), a special rubber tube inserted into the food channel – in the event of resistance, with the use of force, could amount to torture within the meaning of Article 3 of the Convention, if there is no medical necessity (see paragraph 63 above - restraints in accordance with the European Prison Rules). 98. In the instant case, the Court finds that the force-feeding of the applicant, without any medical justification having been shown by the Government, using the equipment foreseen in the decree, but resisted by the applicant, constituted treatment of such a severe character warranting the characterisation of torture. 99. In the light of the above, the Court considers that there has been a violation of Article 3 of the Convention. 3. Medical assistance and treatment provided for the applicant 100. The applicant submitted that he had not been provided with necessary medical assistance and treatment in the course of his detention. He further alleged that SIZO No. 1 of the Kyiv Region lacked the medicines required for the treatment of his particular state of health, the chronic diseases from which he suffered and the diseases which he contracted in detention. The medicines he required had been supplied largely by his relatives – his sister in particular – and sometimes the detention facility had not accepted them because the applicant had refused to discontinue his hunger strike. 101. The Government maintained that the applicant had received all necessary medical treatment and assistance while he was detained. 102. The Court notes its findings with regard to the force-feeding administered to the applicant, which in itself demonstrates that the domestic authorities did not provide appropriate medical treatment and assistance to the applicant while he was in detention. On the contrary, the force-feeding has not been shown to have been related to his particular state of health or to the strict medical necessity of saving his life. 103. It also notes that the applicant was examined by a doctor for the first time one and half months after he had been detained. Prior to his detention, the applicant had not been suffering from any skin disease and his state of health was normal until he contracted allergic dermatitis in custody (the conclusion of his examination on 5 February 1998, paragraph 41 above), which later proved to be microbic eczema and scabies. At the start of the force-feeding, the applicant was examined more regularly. 104. The independent medical examination No. 58 of 8 May 1998 recommended that the applicant be given treatment in a specialised hospital for microbic eczema (paragraphs 43-44 above). However, this recommendation was not followed because of that hospital's view that the applicant could well be treated for scabies in custody (examination by Kyivsky Dermato-Venerologichny Hospital of 14 July 1998, paragraph 46), confirmed by medical report No. 88 of 20 July 1998 (paragraph 47 above). 105. Furthermore, the applicant suspended his hunger strike on 14 July 1998, resuming in October 1998. However, from the records submitted by the Government it is clear that the applicant was not examined or attended by a doctor from 5 August 1998 to 10 January 2000 (paragraph 50 above). In the Court's view, this cannot be deemed to be adequate and reasonable medical attention, given the hunger strike and the diseases from which the applicant was suffering. Furthermore, the Government have provided no written records as to the force-feeding throughout the hunger strike, the kind of nutrition used or the medical assistance provided to him in this respect. 106. In these circumstances, the Court considers that there has been a violation of Article 3 of the Convention as regards the lack of adequate medical treatment and assistance provided to the applicant while he was detained, amounting to degrading treatment. III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1(c) AND 3 OF THE CONVENTION A. Lawfulness of the applicant's detention (Article 5 § 1 (c) of the Convention) 1. The parties'submissions 107. The applicant complained that his detention on remand had been unlawful once the maximum statutory period of detention had expired. He referred to Article 5 § 1(c) of the Convention, which provides in so far as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” 108. The Government maintained that the applicant's detention from 30 September 1998 to 22 February 2000 was lawful. They submitted that it had been lawful to detain the applicant from 9 September 1998 to 9 August 1999 and from 5 January to 7 February 2000 as, during those two particular periods, the applicant had been studying the material on the case-file, foreseen by Article 218 of the CCP, and there had been an additional investigation in the criminal case, pursuant to Article 156 § 7 of the CCP. 2. General principles enshrined in the case-law 109. The Court notes that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and lay down an obligation to conform to the substantive and procedural rules thereof. While it is for the national authorities, notably the courts, to interpret and apply domestic law, the Court may review whether national law has been observed for the purposes of this Convention provision (see, among other authorities, Douiyeb v. the Netherlands [GC], no. 31464/96, §§ 44-45). 110. The Court recalls that the “lawfulness” of detention under domestic law is the primary, but not always the decisive element. The Court must, in addition, be satisfied that the detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary manner. Moreover, the Court must ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 19-20, § 45). 111. The Court stresses that, where deprivation of liberty is concerned, the general principle of legal certainty must be satisfied. It is therefore essential that the conditions for the deprivation of liberty under domestic law be clearly defined, and that the law itself be sufficiently certain to enable a person – if need be after having obtained appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see S.W. v. the United Kingdom, judgment of 22 November 1995, Series A no. 335-B, pp. 41–42, §§ 35–36). 3. The reservation made by Ukraine under Article 5 § 1 of the Convention 112. The Court observes that the reservation refers, inter alia, to Articles 106 and 157 of the CCP (see paragraphs 56-59 above), according to which a person may be arrested or detained on the basis of a public prosecutor's decision, without there being any requirement for judicial supervision of the initial detention (see Salov v. Ukraine ( dec .), no. 65518/01, 27 April 2004). Having regard to the terms of the reservation, Ukraine was under no Convention obligation to guarantee that the initial arrest and detention of persons, like the applicant, be ordered by a judge (see Falkovych v. Ukraine ( dec .), no. 64200/00, 29 June 2004). 113. The Court notes that the issue of the prolongation of a person's detention is decided on the basis of Article 156 of the CCP (see paragraph 54 above). This provision was not, however, included in Ukraine's reservation under Article 5 § 1 of the Convention. 114. Having regard to the terms of the reservation and the fact that it did not refer to Article 156 of that Code, the Court considers that the issue of continued detention is not covered by that reservation. 4. The lawfulness of the applicant's continued detention 115. As regards the facts of the present case, the Court notes that the applicant's detention was initially ordered by the investigator of the Ministry of the Interior on 8 April 1997. A warrant for the applicant's arrest was confirmed by the Kyiv City Prosecutor on 11 April 1997. This warrant was reviewed by a court on 28 May 1997. The applicant's detention was extended on five successive occasions by the relevant prosecutors from six to eighteen months. The last decision to extend the applicant's detention was given on 30 June 1998 by the Acting Prosecutor General (see paragraphs 27 and 31-34 above). On 1 November and 16 December 1999 the Kyiv City Court and the Supreme Court rejected the applicant's requests for release, even though the maximum statutory period of permitted detention had expired. 116. The Court notes that a period of detention is, in principle, “lawful” if it is based on a court order (see Ječius v. Lithuania, no. 34578/97, § 68, ECHR 2000 ‑ IX). However, there were no court decisions taken as to the applicant's continued detention from 29 May 1997 to 1 November 1999. The decisions to prolong the applicant's detention were taken by prosecutors, who were a party to the proceedings, and cannot in principle be regarded as “independent officers authorised by law to exercise judicial power” (see Merit v. Ukraine, no. 66561/01, judgment of 30 March 2004, § 63). In view of their role and status, they could not carry out the appropriate review of the lawfulness of the decision to prolong the applicant's detention, which is an issue to be considered under Article 5 § 3 of the Convention. 117. The courts only reviewed the decisions of the prosecution for the applicant's continued detention on 1 November and 16 December 1999, when they refused the applicant's request for release, without giving any particular reasons and without specifying the period of further detention, even though the maximum statutory period of detention in the applicant's case had already expired on 30 September 1998. The applicant finished familiarising himself with the case-file on 9 August 1999 but, in accordance with Article 156 of the CCP, this period was not taken into account in calculating the total period of detention. Further investigations were ordered on 1 November 1999 by the Kyiv City Court and 16 December 1999 by the Supreme Court. 118. In these circumstances, the Court concludes that the applicant's continued detention from 1 October 1997 (the date of second prolongation of the period of his detention, that falls within the Court's jurisdiction ratione temporis ) to 1 November 1999 (the first period) was not lawful, as understood by Article 5 § 1(c) of the Convention. 119. Furthermore, the maximum statutory period of detention in the event of an additional investigation ordered by the court is two months. This period expired on 16 February 2000. However, the applicant was not released for another seven days, on 23 February 2000, following the decision the day before of the First Deputy Prosecutor of Kyiv Region to release him. In these circumstances, the Court concludes that the applicant's continued detention from 16 to 22 February 2000 (the second period) was also unlawful under Article 5 § 1(c) of the Convention. 120. Furthermore, the applicant was released on 23 February 2000, a day after it had been decided to release him (third period), even though he should have been released immediately in view of the expiry of the statutory period of detention (see paragraph 54 above). 121. The Court concludes, therefore, that there has been a violation of Article 5 § 1(c) of the Convention in that the applicant was detained without lawful ground from 1 October 1997 to 1 November 1999, from 16 to 22 February 2000 and from 22 to 23 February 2000. B. Complaints under Article 5 § 3 of the Convention 122. The applicant further complained that the overall length of his detention had not been “justified” or “reasonable”. He referred to Article 5 § 3 of the Convention, which provides in so far as relevant as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 1. Whether the applicant was brought promptly before an officer authorised by law to exercise judicial power to review his continued detention a. The parties'submissions 123. The applicant complained under Article 5 § 3 of the Convention that he had been held in detention for two years, ten months and fifteen days without being brought promptly before a judge or other officer authorised by law to exercise judicial power in order to review his prolonged detention. 124. The Government argued that the length of the applicant's detention in police custody had been in conformity with the legislation in force at the time. They asked the Court to reject the applicant's allegations as groundless. They further maintained that the prosecutor was an officer authorised by law to exercise judicial power and that the prolongation of the applicant's detention had therefore complied with the requirements of Article 5 § 3 of the Convention. b. Status of the public prosecutor in Ukrainian law / As to whether the prosecutor could be considered as “an officer authorised by law to exercise judicial power” 125. The Court decided this issue in the case of Merit v. Ukraine (cited above, §§ 62-64). There it noted the status of the prosecutor under Ukrainian law as a party to criminal proceedings and his or her subordination to the executive branch of Government. The Court held, therefore, that a prosecutor cannot be regarded as an officer exercising “judicial power” who is endowed with the attributes of “independence” and “impartiality” required by Article 5 § 3 (see also Schiesser v. Switzerland, judgment of 4 December 1979, Series A no. 34, §§ 27-41) and who can offer guarantees against an arbitrary or unjustified deprivation of liberty (see Niedbała v. Poland, no. 27915/95, §§ 48-57, 4 July 2000). There is no reason to reach a different conclusion in the present case. Accordingly, the Court rejects the Government's submissions as to the independence and impartiality of the prosecutor. c. Whether the applicant was brought promptly before a court to review his prolonged detention 126. The judicial control under Article 5 § 3, must be prompt, a matter to be assessed in each case according to its special features (see De Jong, Baljet and Van den Brink v. the Netherlands, judgment of 22 May 1984, Series A no. 77, pp. 24-25, §§ 51-52). However, the scope for flexibility in interpreting and applying the notion of promptness is very limited ( Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, pp. 33-34, § 62). The Court recalls that, in the Brogan and Others case (p. 33, § 62), it held that a justifiable detention in police custody which had lasted four days and six hours, without judicial control, breached the requirement of promptness. 127. The Court observes that the applicant was held in pre-trial detention for a total of two years, ten months and fifteen days from 8 April 1997 to 23 February 2000. His initial detention as a suspect was authorised by the public prosecutor on 11 April 1997, against which the applicant appealed on 12 May 1997. However, it took the Moskovsky District Court of Kyiv more than two weeks to review the measure and, on 28 May 1997, it upheld its lawfulness. Further decisions with regard to the applicant's continued detention were taken by the prosecutors. The only other judicial reviews of the applicant's detention were held on 1 November and 16 December 1999 by the Kyiv City Court and the Supreme Court respectively. 128. Even though the investigation of economic offences presents the authorities with special problems, the Court cannot accept that it was necessary to detain the applicant for so long in pre-trial detention without either prompt or regular judicial supervision. 129. The Court finds therefore that there has been a breach of Article 5 § 3 of the Convention in this respect. 2. Length of the applicant's detention a. Case-law of the Court 130. The Court observes that the question of whether or not a period of pre-trial detention is reasonable cannot be assessed in the abstract. Each case must be examined on its own special features. Continued detention may be justified if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland, [GC], no. 30210/96, § 110, ECHR 2000-XI). 131. It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of a public interest justifying a departure from the rule in Article 5, and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions, and any well-documented facts stated by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of this aspect of Article 5 § 3 (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000 ‑ IV). 132. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. The complexity and special characteristics of the investigation are factors to be considered in this respect (see Scott v. Spain, judgment of 18 December 1996, Reports 1996-VI, pp. 2399-2400, § 74, and I.A. v. France, judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102). 133. Furthermore, the Court reiterates that the notion of legal certainty, based on the rule of law, pervades Article 5 of the Convention, in particular Article 5 § 3. In this connection the Court observes that Article 156 of the CCP (see paragraph 54 above) in essence contravenes the Court's case-law, since the time allowed for the applicant to familiarise himself with the case-file was not regulated by domestic law with sufficient precision and was not taken into account in calculating the overall period of the applicant's pre-trial detention. Moreover, the applicant was expected to remain in custody for an indeterminate period of time, without any judicial authorisation for his prolonged detention, as required by Article 5 § 3, while he and/or other suspects were studying the case-file. The Court considers, therefore, that this statutory loophole which existed in the CCP was, in itself, contrary to the principle of “legal certainty” (see Ječius v. Lithuania, no. 34578/97, § 57, ECHR 2000 ‑ IX). It further notes that, with the introduction of changes and amendments to the CCP on 3 April 2003, this situation has been partially rectified. However, such reforms did not affect the applicant's situation at the material time. b. Period to be taken into consideration 134. The Court recalls that, in determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (see, among other authorities, Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, p. 23, § 9, and Labita v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000-IV). The Court thus finds that the applicant's detention lasted from 8 April 1997 to 23 February 2000, that is, a total of two years, ten months and fifteen days. However, only two years, five months and twelve days fall with its competence ratione temporis, the entry into force of the Convention with respect to Ukraine having occurred on 11 September 1997. 135. The Court notes the standard reasons for the prosecution's initial decision to remand the applicant in custody: the risks of obstruction, intimidation of witnesses and tampering with evidence. The decision also had regard to the gravity of the charges against the applicant. The Court recalls that the existence of a strong suspicion of the involvement of a person in serious offences, while constituting a relevant factor, cannot alone justify a long period of pre-trial detention (see Scott v. Spain, cited above, p. 2401, § 78). In this context, it notes that none of the judicial or prosecution decisions in the applicant's case relied on any factual circumstances to support their conclusions that the preventive measure should be maintained. There is no reference in these decisions to any factor capable of showing that the risks relied on actually persisted during the relevant period. Moreover, there is no reference to the grounds specified in Articles 148 and 150 of the CCP (paragraph 54 above). 136. The Court considers that the original reasons given by the prosecution - a possible interference with the investigation and the suspicion that the applicant had committed the offences with which he was charged – might have sufficed to warrant the applicant's initial detention on remand. However, as the proceedings progressed and the collection of the evidence neared completion (the applicant familiarising himself with the content of the prosecution's case-file) that ground would have inevitably become less relevant. It notes that some of the suspects were not held in detention during the course of the investigation, due to their family situation. Having regard to its conclusions above (paragraphs 83-88) as regards the applicant's state of health and conditions of detention, the Court considers that he should not have been subjected to prolonged detention. In the absence of any concrete evidence to the contrary from the Government, the Court finds that the applicant's continued detention was neither necessary nor justified by special circumstances. 137. Moreover, the Court notes that no alternative measures were effectively considered by the domestic authorities to ensure the applicant's appearance at trial (cf. Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, p. 3, § 3, and Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000). A bail surety was deposited, but had no effect (see paragraphs 32-33 above). The authorities did not look into the other possible preventive measures expressly provided for in Article 149 of the CCP (paragraph 54 above) until the statutory limit on the applicant's detention had expired, when, on 23 February 2000, he was released on his undertaking not to abscond (paragraph 37 above). 138. In sum, the Court finds that the reasons relied on by the authorities to justify the applicant's continued detention for more than two years and five months, although possibly relevant and sufficient initially, lost these qualities as time passed. There has accordingly been a violation of Article 5 § 3 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 139. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 140. The applicant claimed pecuniary damage amounting to 60,700 American dollars (USD), being about 45,828.60 euros (EUR). In that sum he included his loss of salary during the 34 months of his detention (USD 15,300), the bail surety paid to the Ministry of the Interior (USD 40,000), the cost of medicine provided by his relatives and other medical expenses (USD 5,400) he had incurred during his detention. In support of his claim, the applicant provided evidence of the salary he had previously received as an employee of the Ukrinbank, information regarding the calculation of the bail surety and receipts of currency-exchange transactions, the proceeds of which were allegedly spent on his medical needs. 141. The Government submitted that there was no causal link between the protracted length of the applicant's detention and the pecuniary damages claimed. They noted that the period of the applicant's detention had been deducted from the sentence, against which the applicant had not appealed. They also considered that the applicant's claim for bail compensation could not be examined by the Court as that part of the applicant's case had been declared inadmissible. As regards the applicant's claims for compensation for medical expenditure, the Government considered them unsupported by receipts and fabricated. They asked the Court not to make an award of this kind. 142. The Court considers that no causal link has been established by the applicant between the alleged pecuniary damage and the violation of Article 5 of the Convention it has found. However, the Court accepts that the applicant and his family incurred certain medical expenses in their attempt to mitigate the unacceptable conditions of the applicant's detention and their negative consequences for his health, in respect if which the Court has found a violation of Article 3 of the Convention. Deciding on an equitable basis, it awards the applicant EUR 1,000 in compensation in this respect. B. Non-pecuniary damage 143. The applicant claimed USD 150,000 (EUR 112,530) in compensation for non-pecuniary damage. He maintained that he had suffered spiritual and physical anguish, stress and worry throughout his detention, and had been tortured during the force-feeding, dishonoured, his will suppressed and his health broken. He also submitted that his normal way of life had been disrupted and that he had been deprived of normal relations with other people. His image and career opportunities had been affected and it was not possible for him to support his elderly parents. 144. The Government noted that the amount claimed was inordinate and bore no relation to the present case. They submitted that social disruption was a natural consequence of any detention. They asked the Court to award a sum on an equitable basis taking into account its case-law on the issue and the principle that applications to the Court cannot serve as a basis for unjustified enrichment. 145. The Court recalls its findings above of grave violations of Articles 3 and 5 of the Convention in the present case. Having regard to comparable applications in its case-law, and deciding on an equitable basis, the Court awards the applicant EUR 20,000 in compensation for non-pecuniary damage (cf. Peers v. Greece, no. 28524/95, § 88, ECHR 2001 ‑ III, and Khokhlich v. Ukraine, no. 41707/98, § 228, 29 April 2003). C. Costs and expenses 146. The applicant submitted a legal costs claim for his representation in Ukraine and before the Court amounting to USD 59,200 (EUR 44,410), supported by the following: (a) a certificate from Mr Vronsky (the lawyer dealing with the applicant's case from August 1997 until February 2000) for the month of February in the sum of UAH 1,200. The applicant claimed that the total amount for the whole period of his representation at the rate of UAH 1,200 per month was USD 16,200 (EUR 12,150); (b) a certificate from Mr Portyanyk (the lawyer dealing with the applicant's case from May 1997 until February 2001) for UAH 90,610 (EUR 13,014) that is allegedly still unpaid; (c) the applicant claimed that he had paid Mr Didenko (his lawyer from June 1997 until February 2001) USD 9,000 (EUR 6,751.69); (d) the applicant claimed that on 10 December 1998 he had paid Analityk, an auditing company, UAH 2,400 (EUR 437.92) for a financial and accounting examination that had been necessary in his criminal case. He provided the contractual documentation of this service. (e) the applicant submitted an expenses claim relating to correspondence, telephone calls, telegrams, etc., in the total amount of USD 500 (EUR 375), of which he provided some proof; (f) the applicant submitted that he had concluded an agreement with Mr Portyanyk for a total amount of UAH 60,000 (EUR 9,307.70) that is still owed for his representation before the Court (between May 1999 and January 2004); (g) the applicant claimed other expenses for the proceedings before the Court with regard to the printing of documents, telephone calls, faxes and translations into official languages, amounting to USD 5,000 (EUR 3,750). 147. The Government submitted that the claims were unsubstantiated. They further pointed out that these claims were not corroborated by any vouchers, receipts or other documents. They requested the Court to reject them. 148. The Court reiterates that, in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see Merit v. Ukraine, no. 66561/01, § 88, 30 March 2004). The Court considers that these requirements have not been fully met in the instant case. It is not satisfied that all the costs and expenses, allegedly amounting to EUR 44,410, were reasonably incurred in connection with the complaints submitted to the Court. The only expenditure which the applicant has substantiated is the UAH 1,200 paid to Mr Vronsky, and the UAH 2,400 paid by his sister for Analytik's expert audit. However, the first sum of UAH 1,200 was not directly or personally paid by the applicant but by Ukrinbank (cf. the publication of extracts of the judgment in Gusinskiy v. Russia, no. 70276/01, § 88, ECHR 2004). Furthermore, as regards the contracts concluded between Mr Portyanik and the applicant for a total amount of UAH 150,610.00 (EUR 21,632.30), the Court finds them couched in very general terms from which it is impossible to determine the specific financial obligations of the applicant towards his lawyer and the conditions under such sums were due. Nevertheless, it is clear that the applicant incurred some legal fees and bore some expenses in relation to the domestic proceedings and the proceedings before the Court, in the light of his submissions before the Court throughout the proceedings and the observations submitted by his lawyers. 149. Regard being had to the information in its possession and to the above criteria, the Court considers it reasonable to award the applicant EUR 5,000 for costs and expenses. D. Default interest 150. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court first observed that “a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The [Court] must nevertheless satisfy [itself] that the medical necessity has been convincingly shown to exist … Furthermore, [it] must ascertain that the procedural guarantees for the decision to force-feed are complied with. Moreover, the manner in which the applicant is subjected to force-feeding during the hunger strike shall not trespass the threshold of a minimum level of severity envisaged by the Court’s case law under Article 3 of the [European] Convention [on Human Rights which prohibits torture and inhuman or degrading treatment]. …” (§§ 94-95 of the judgment). In the present case the Court held that there had been a violation of Article 3 (prohibition of torture) of the Convention in respect of the force-feeding of the applicant. The Ukrainian Government had not demonstrated that there had been a medical necessity to force-feed the applicant. It could only therefore be assumed that the force-feeding had been arbitrary. Procedural safeguards had not been respected in the face of the applicant’s conscious refusal to take food. The authorities had further not acted in the applicant’s best interests in subjecting him to force-feeding. Whilst the authorities had complied with the manner of force-feeding prescribed by the relevant decree, the restraints applied – handcuffs, mouth-widener, a special tube inserted into the food channel – with the use of force, and despite the applicants resistance, had constituted treatment of such a severe character warranting the characterisation of torture. The Court also held that there had been a violation of Article 3 (prohibition of degrading treatment) of the Convention in respect of the conditions of the applicant’s detention and the lack of adequate medical care. |
556 | Way of life, forced evictions and alternative accommodation | II. RELEVANT DOMESTIC LAW AND PRACTICE 66. Section 65 of the Municipal Property Act empowers the mayor to order the repossession of real property belonging to the municipality and occupied by others if they have no legal right to occupy it. The mayor’s order is amenable to judicial appeal. Its enforcement is effected by the police. 67. The new paragraph 5 of section 65, added in May 2008, provides that persons occupying municipal real property without a legal basis cannot avail themselves of sections 72-74 of the Property Act, which bestow certain rights on holders of property belonging to another (under certain conditions, the right to reimbursement for improvements, and to withhold the property pending such reimbursement). 68. According to section 92 of the Property Act, read in conjunction with its other provisions, buildings belong to the owner of the land except where the right to construct a building has been lawfully conveyed by the owner to another person. Prior to 1996 it was not possible under Bulgarian law to acquire State or municipal property through adverse possession. Since 1996, state and municipal property, if it is of the category of “private state property”, may in principle be acquired by private persons through adverse possession, under a number of conditions. Through a transitory provision introduced in 2006, the running of the ten-year prescription period was suspended and the suspension is still in force. 69. The categorisation of persons in need of housing and the possibility of applying for municipal housing are governed by municipal regulations issued by each municipality in accordance with section 45a of the Municipal Property Act. These regulations, which differ from city to city, usually require candidates to have had their registered address in the town for more than five years, to have no real property of their own, and to have resources that do not exceed a certain maximum. Typically the application must be made in writing on a form and be accompanied by a number of documents. The decision whether to recognise the need is taken by a municipal commission and is amenable to judicial appeal. Among the candidates recognised as being in need of housing, homeless persons and those living in dangerous and unhealthy conditions have priority. 70. In accordance with sections 43 and 45 of the Municipal Property Act, an emergency stock of municipal flats may be used to house for up to two years persons whose dwellings are unsafe as being in danger of collapsing and persons with severe social or health problems. 71. Under sections 4 and 5 of the Protection against Discrimination Act, in force since 1 January 2004, racially offensive statements may be considered discriminatory. The victim may file a complaint with the Commission for Protection against Discrimination (see, for example, Decision no. 178 of 25 July 2008, where that commission established that the anti-Roma language used in a television broadcast of 24 February 2007 amounted to prohibited discrimination) or bring an action in court. Racially offensive statements may be criminally punishable under Articles 146 and 148 of the Criminal Code. The proceedings must be initiated by the victim. Separately, incitement to racial hatred is an offence punishable under Article 162 of the Criminal Code. 72. At the time when the removal order of 17 September 2005 was issued and reviewed by the domestic courts, Bulgarian administrative procedure law did not enshrine the principle of proportionality. Since July 2006, when the Code of Administrative Procedure entered into force, this principle is set out in Article 6 of the Code. III. RELEVANT INTERNATIONAL MATERIAL A. The Council of Europe 73. On 18 October 2006 the Council of Europe’s European Committee of Social Rights delivered a decision on the merits of a complaint against Bulgaria brought by the European Roma Rights centre, a non-governmental organisation. The Committee found, inter alia, that “the lack of legal security of tenure and the non-respect of the conditions accompanying eviction of Roma families from dwellings unlawfully occupied by them constitute[d] a violation of Article 16 of the Revised European Social Charter, taken together with Article E”. Article 16 concerns the right of families to “appropriate social, legal and economic protection” and Article E prohibits discrimination in the enjoyment of the rights set forth in the Charter. 74. To reach its conclusion, the Committee found that the Bulgarian legislation allowing the legalisation of illegal constructions set conditions “too stringent to be useful in redressing the particularly urgent situation of the housing of Roma families”, a situation recognised by the Bulgarian Government. The Committee also considered that the authorities had tolerated the unlawful Roma settlements for long periods and were accordingly obliged to carefully balance town planning measures against “the right to housing and its corollary of not making individual[s] homeless”. The Committee further found that by failing to take into consideration the specificity of the living conditions of Roma and strictly applying the rules on legalisation of buildings to them, Bulgaria had discriminated against Roma families, whose situation differed not least as a consequence of State non-intervention over a certain period. Similarly, there was discrimination on account of the authorities’ failure to take into account that Roma families ran a higher risk of eviction, and the authorities’ failure systematically to find alternative accommodation for the evicted families. 75. On 5 September 2007 the Committee of Ministers of the Council of Europe adopted a resolution in the case in which it noted, inter alia, the Bulgarian delegation’s statement before it that Bulgaria intended to amend the Territorial Planning Act to allow for easier legalising of existing buildings and construction of social housing. 76. In its 2005 Recommendation on improving the housing conditions of Roma the Committee of Ministers of the Council of Europe called upon member States, inter alia, to use proportionate response to illegal Roma settlements and seek, where possible, solutions acceptable for all parties. Also, eviction measures should include consultation with the community or individual concerned, reasonable notice, provision of information, a guarantee that the eviction will be carried out in a reasonable manner and alternative housing measures. As to daily life in existing settlements, the authorities should provide the same level of services as to other groups of the population and should, beyond that, promote better management including adequate management of neighbourhood conflicts. Housing policies should be tailored to the specific situations of the Roma communities. 77. In its 2008 Recommendation on policies for Roma and/or Travellers in Europe, the Committee of Ministers of the Council of Europe called upon Member States, inter alia, to ensure that decisions adopted by local authorities in the relevant area would not have a discriminatory effect on Roma. 78. In its Resolution 1740(2010) on the situation of Roma in Europe and relevant activities of the Council of Europe, the Parliamentary Assembly of the Council of Europe noted with concern that the process of Roma integration in Europe had not reached its objectives over the last twenty years, that Roma people were still regularly victims of intolerance, discrimination and rejection based on deep-seated prejudices and that the situation of Roma with regard to education, employment, housing, health care and political participation was far from satisfactory. The Assembly stated that adopting national strategies was insufficient in the absence of implementation measures at local and regional levels. It urged member States, inter alia, to promote a positive image of diversity, address stereotypes and prejudices, react strongly to racist discourse by public officials and tackle hate speech vis-à-vis Roma, be it in the media, politics or in civil society. As regards housing, the Assembly urged member States to take urgent measures to prevent forced evictions of Roma camps and settlements and – in cases of unavoidable evictions – ensure that such evictions were carried out only when all procedural protections required under international human rights law were in place, including the provision of adequate alternative housing and compensation for expropriation and losses of moveable possessions damaged in the process of eviction and, in the absence of such procedural protections in the existing domestic law, introduce legislation on evictions providing safeguards and remedies in accordance with international standards. 79. The Council of Europe’s Commissioner for Human Rights, in his 2009 Recommendation on the implementation of the right to housing stated, inter alia, that States should specify in legislation that positive measures are justified in order to promote full and effective equality provided that there was an objective and reasonable justification for such measures. B. The European Union 80. In October 2009 the EU Agency for Fundamental Rights issued a comparative report on the housing conditions of Roma and travellers in the EU. 81. According to the report, significant numbers of Roma in Europe live in unauthorised settlements. For example, in 2002 an estimated 70% of houses in urban Romani developments in Bulgaria were illegally built, in 1999 in Greece approximately 63,000 Roma lived in unregulated encampments and in 2008 in France most Roma groups lived in squalid shantytowns. 82. The report also mentioned cases of forced evictions of such encampments, in particular in Italy and Greece. C. The United Nations Organisation 83. The United Nations Committee on Economic, Social and Cultural Rights, in its General Comment no. 7 concerning forced evictions and the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights, stated, inter alia, that evictions should not render persons homeless or more vulnerable to human rights violations. Also, evictions must meet a number of conditions, such as prior consultation with the persons to be evicted, the giving of adequate and reasonable notice as to when the eviction will take place and the availability of judicial remedies. If those evicted cannot provide for themselves, States should take all reasonable measures, utilising all available resources, to ensure the provision of adequate alternative housing. THE LAW I. ALLEGED VIOLATIONS OF THE CONVENTION IN THE EVENT OF ENFORCEMENT OF THE ORDER OF 17 SEPTEMBER 2005 84. The applicants alleged that if the order of 17 September 2005 was enforced and they were removed from their homes in Batalova Vodenitsa, that would amount to inhuman and degrading treatment contrary to Article 3 and violate their right to respect for their homes under Article 8. They further complained, relying on Article 13, that the authorities failed to consider proportionality issues and, relying on Article 14, that their removal would be discriminatory. They also complained that Article 1 of Protocol No. 1 would be violated. A. The parties’ submissions 1. The applicants 85. The applicants submitted that the houses where they lived and had their registered address were their homes regardless of the fact that they had not been built lawfully. Nothing had been done for decades to remove the applicants. For people as desperately poor and outcast as them the expectation that the inactivity would last was a basis to build lives on. The applicants had the right to respect for their homes and deprivation of one’s home was a most extreme form of interference with this right. 86. The applicants considered that the real aim pursued by the authorities was to free the terrain so that it could be leased or sold to a private entrepreneur for development and to “rid” the district of an unwanted Roma “ghetto”. Those were illegitimate aims. 87. In the applicants’ view, the Government’s attempt to use the neighbours’ protests to justify the eviction order was based on the fallacious assumption that the disorder and lack of sanitation complained of could not be remedied as long as the applicants’ community was present. This was to assume that a Roma community such as the applicants’ inherently produced disorder and pollution and could not be controlled by ordinary policing. The racist nature of this assumption which underlay the Government’s argument was evident. While the issues raised in complaints by ethnic Bulgarian neighbours were serious and a cause for concern, it was unacceptable to seek to solve them through collective expulsion, without regard to individual conduct. That would be nothing less than collective punishment on the basis of ethnic origin. 88. The applicants stated that the authorities had never considered the applicants’ personal circumstances, never consulted them before issuing a removal order and never considered proportionality even in theory. On the contrary, the authorities had openly and publicly asserted that the applicants had no rights at all and that it had been necessary to defend the rights of the non-Roma inhabitants who wished to have the “ghetto” removed. On two occasions, in 2006 and in 2008, the authorities had sought to evict the applicants, despite the September 2005 agreement under which they had undertaken to provide shelter to the families concerned. That agreement had always remained a dead letter. The history of the problem and the authorities’ actions since 2005 had shown beyond doubt that the majority public opinion and the authorities were in favour of eviction, and that talk about a consensus towards helping the Roma families concerned was without substance. 89. The applicants protested against the Government’s reliance on private complaints in terms that disclosed clear racist prejudice, presenting the problems in the neighbourhood as rooted in the racial opposition between Roma and Bulgarians and seeking the unconditional “return of the Roma to their native places”. Moreover, in the applicants’ view, the Government’s submissions (see paragraphs 92-99 below) were replete with statements disclosing racial prejudice, such as their admission that the authorities sought to avoid “concentration of large groups of Roma population”, as if Roma people were a pest of sorts which needed to be kept to a minimum. The Government assumed gratuitously that Roma people had fraudulently taken advantage of municipal housing, or would do so. They relied on racist initiatives such as a petition condemning “discrimination against the Bulgarians”. The Government’s appeal to the Court to bow to majority public opinion, which was in favour of evicting the applicants, not only conflicted with fundamental human rights principles but also showed that the Bulgarian authorities were sensitive to, if not supportive of, public prejudice against the Roma. 90. In the applicants’ view, the Government’s argument that demolition of illegal constructions happened everywhere in Bulgaria, regardless of ethnic origin, was not convincing. The examples given by the Government concerned business properties or holiday retreats owned by persons far wealthier than the applicants, not poor persons’ only homes. The relevant question was whether the authorities would order the collective eviction of a non-Roma community of two hundred persons, including children, without compensation and without alternative shelter, leaving them on the street. In the applicants’ view, it was inconceivable that this should happen. The manner in which the applicants were being treated was clearly linked to their ethnic origin. 91. Lastly, the applicants stated that the houses they had built and their belongings were “possessions” within the meaning of Article 1 of Protocol No. 1 despite the fact that they did not own the land. 2. The Government 92. The Government submitted that while for many years nothing had been done to remove the Roma families who started settling in Batalova Vodenitsa towards the end of the 1960s, it had always been clear that they were occupying State and municipal land unlawfully. They did not own the land and could not claim ownership on the basis of the fact that they had built makeshift houses without authorisation and in violation of building rules. The applicants could not claim, therefore, that they had an expectation to be allowed to remain in Batalova Vodenitsa. For long periods the authorities had not implemented the urbanisation plans for the area, other matters having had priority. This delay did not mean that the applicants’ illegal presence was tolerated. 93. The matter had become urgent when citizens living in the neighbourhood had started complaining about the Roma families’ behaviour. In support of the above, the Government submitted copies of handwritten complaints by non-Roma residents of Batalova Vodenitsa. Most of them were addressed personally to the Government’s agent in the proceedings before the Court and were apparently drafted for the purposes of the present proceedings on unspecified dates at the end of 2008 or the beginning of 2009. They were entitled “complaints by the Bulgarians living in Batalova Vodenitsa” and started with the following words: “We complain against the Roma ...”. The grievances made were that the Roma disposed of their waste in various places, thus littering the area, kept animals, dried their laundry by hanging it out for everyone to see, engaged in stealing and disorderly and aggressive behaviour, drank and used drugs. According to the text of the complaints, the signatories appealed to have the Roma removed and “returned to their native places”, although on visual examination of the copies submitted to the Court it appears that these last words may have been added by the author of the main text, either before or after the text had been signed by the signatories. 94. The Government further maintained that the relevant authorities had established that the applicants’ makeshift buildings posed a sanitary risk, might collapse and did not meet fire safety requirements. Having considered the matter, the Sofia municipality had decided to remove the Roma settlement and go ahead with the plans to construct blocks of flats in the area. Referring to the Court’s judgment in the case of Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004 ‑ XII, the Government considered that had the Bulgarian authorities remained inactive in the face of the safety and sanitary risks that the applicants’ settlement represented, they would have risked liability under the Convention for failure to discharge their positive obligation to protect life and health. 95. The Government further stated that problems in the integration of the Roma population were not uncommon and Bulgaria was not alone in this respect. The authorities had demonstrated their determination to secure equal rights for all citizens, irrespective of their origin. The National Council for Cooperation on Ethnic and Demographic Issues, which included representatives of non-governmental organisations and was presided over by the Director of Ethnic and Demographic Matters at the Council of Ministers, had dealt with the problems in Batalova Vodenitsa. Detailed plans to help Roma families find housing and jobs existed and were in the process of implementation in many towns in the country, including districts of Sofia. A relevant example was the creation in June 2008 of a special working group at the Sofia municipality to deal with the demolition of social dormitory buildings in another area, known as Selishte na Stroitelia and Vietnamski Obshtezhitia. The buildings had been damaged by their lawful and unlawful occupants, predominantly of Roma origin, and the working group was seeking possibilities of finding housing for them in separate districts of Sofia, “in order to avoid large concentrations of Roma people”. 96. The Government thus stated that the relevant authorities were working to find a lasting solution to the housing problem of the Roma families concerned before reclaiming the municipal land they occupied in Batalova Vodenitsa. 97. The Government also submitted that the decision to remove the applicants’ houses was motivated solely by the need to enforce the law on illegal constructions and put an end to a situation which posed a sanitary risk and disfigured the city landscape. The authorities in any European capital would do as much. The applicants were not entitled to privileged treatment because of their ethnic origin or traditional lifestyle. They were not being treated in a discriminatory manner, measures against illegal occupation being undertaken regardless of the ethnicity of the persons concerned. The Government submitted information about orders for the demolition of illegal constructions in different parts of the country. Moreover, in their view, the one-sided presentation of the problems of the Roma population in Bulgaria by their self-appointed representatives seeking popularity stirred tension and provoked reactions from other ethnic groups. The Government were against such attempts to incite ethnic hatred. The reality was that there were two sides in the dispute: the lawful residents of the neighbourhood and the applicants, who occupied municipal land without title and “whose way of life is in contradiction with public norms and rules and in this sense generates tensions in society”. 98. The Government also appealed to the Court to take into account, in deciding the case, the reaction a finding of a violation of the Convention would prompt in Bulgarian society, precisely because Bulgarian society expected to see the law applied equally to persons from all ethnic groups. 99. Lastly, noting that for short periods four of the applicants had registered at addresses outside Batalova Vodenitsa, the Government submitted that such changes could also be observed in respect of other Roma inhabitants. Therefore, in the Government’s view, the supposition could be made that some of the persons concerned had “acquired flats”, sold them and then again registered in Batalova Vodenitsa with the aim of obtaining municipal flats. B. The Court’s assessment 100. Considering that the central issues in the present case concern the applicants’ rights under Articles 8 and 14 of the Convention, the Court will examine these complaints first. 1. Article 8 of the Convention 101. This provision reads, in so far as relevant: “1. Everyone has the right to respect for his private and family life, his home ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” (a) Whether the enforcement of the removal order would interfere with rights protected by Article 8 102. It is undisputed that the applicants and their families have lived for many years in the makeshift houses they or their ancestors built on State or municipal land in Batalova Vodenitsa. While for unspecified limited periods four of the applicants had their registered addresses outside that area, it is not disputed that they returned (see paragraphs 8, 12, 17, 43 and 99 above). The Government’s suggestion that some of the Roma living in the area may have registered there with the aim of obtaining municipal flats is not supported by any evidence. 103. In these circumstances, the applicants’ houses in Batalova Vodenitsa are their “homes” within the meaning of Article 8. This classification is a matter of fact independent of the question of the lawfulness of the occupation under domestic law (see McCann v. the United Kingdom, no. 19009/04, § 46, 13 May 2008). It follows that the applicants’ complaints concern their right under Article 8 to respect for their homes. 104. There is no doubt that the 2005 removal order, if enforced, would result in the applicants’ losing their homes and that, therefore, there would be an interference with their right to respect for their homes (see Ćosić v. Croatia, no. 28261/06, § 18, 15 January 2009). 105. Having regard to the fact that the case concerns the expulsion of the applicants as part of a community of several hundred persons and that this measure could have repercussions on the applicants’ lifestyle and social and family ties, it may be considered that the interference would affect not only their “homes”, but also their “private and family life” (see, similarly, Chapman v. the United Kingdom [GC], no. 27238/95, § 73, ECHR 2001 ‑ I). 106. The Court must examine, therefore, whether such interference, if it materialises, would be lawful and necessary in a democratic society for the achievement of one or several of the legitimate aims set out in paragraph 2 of Article 8. (b) Lawfulness 107. The Court is satisfied that the impugned removal order has a valid legal basis in domestic law (see paragraphs 29 and 66 above). 108. The question whether the applicable domestic legal framework and procedures meet the relevant Convention requirements appears to be in dispute. The Court will examine it below in the context of the question whether the interference, if it materialises, would be justified under Article 8 § 2. (c) Legitimate aim 109. The applicants alleged in essence that the removal order did not pursue a legitimate aim but was intended to benefit a private entrepreneur and to satisfy racist demands to free the area of an unwanted Roma settlement. The Government’s position was that the aim of the measure was to recover illegally occupied municipal land, realise plans for urban development and put an end to a situation involving safety and health risks which had given rise to complaints. 110. The Court observes that the order of 17 September 2005 did not contain a statement about its aim. It was based on a legal provision which concerns recovering a real property from persons who are not authorised to hold it (see paragraph 66 above). As it transpires from statements made by the mayor of the relevant district and from the Government’s submissions (see paragraphs 39, 42 and 92 above), putting an end to the unlawful occupation of the land by the applicants was, apparently, the main aim pursued by the impugned order. 111. As the Court has previously stated, it is legitimate for the authorities to seek to regain possession of land from persons who did not have a right to occupy it (see McCann v. the United Kingdom, cited above, § 48 and Connors v. the United Kingdom, no. 66746/01, § 69, 27 May 2004). 112. Furthermore, it is undisputed that the Batalova Vodenitsa settlement comprises buildings which do not meet the relevant construction requirements (see paragraphs 10-14 above). While it is true that the Government have not submitted evidence of concrete and imminent construction projects, there was a general intention on the part of the authorities to use the land occupied by the applicants for urban development. In particular, such plans for Batalova Vodenitsa had been made and amended several times in the past, including well before 2005 (see paragraphs 9, 15 and 26 above). 113. Unlike the applicants, the Court fails to see an indication of improper motives in the authorities’ plans to transfer the land to a private investor for development purposes (see paragraph 27 above). Improvement of the urban environment by removing unsightly and substandard buildings and replacing them with modern dwellings meeting the relevant architectural and technical requirements is a legitimate aim in the interests of economic well-being and the protection of the health and the rights of others and may in principle justify interference with rights under Article 8 of the Convention (see a similar approach in Buckley v. the United Kingdom, 25 September 1996, §§ 62 and 63, Reports of Judgments and Decisions 1996 ‑ IV, and Chapman, cited above, §§ 80-116). 114. The Court observes, in addition, that it is undisputed that the applicants’ homes lack sewage and sanitary facilities. The Government also alleged that there was a risk of some makeshift houses collapsing. In the Court’s view, while there is no clear evidence of the authorities having considered these issues from the point of view of the needs of those most concerned – the applicants –, it must be acknowledged that there is a legitimate public interest in taking measures to cope with hazards such as those that may stem from an unlawful settlement of makeshift houses lacking sewage and sanitary facilities. Indeed, this was admitted by representatives of the Batalova Vodenitsa residents in the text of the agreement which they signed with the municipal authorities on 28 September 2005 (see paragraphs 11 and 34 above). 115. Lastly, the Court finds unconvincing the applicants’ argument that the authorities envisaged building plans as a mere pretext and that the real aim of the removal order was nothing more than a racist attempt to rid the area of the presence of all Roma. As noted above, there is sufficient evidence of genuine plans for urban development in the area and health and safety hazards and it is legitimate for the authorities, in the interests of economic well-being and the protection of health and of the rights of others, to seek to address these problems. 116. It follows that the impugned measure, if enforced, would have a legitimate aim under Article 8 § 2 of the Convention. The salient issue in the present case concerns “necessity in a democratic society” within the meaning of that provision and the Court’s case-law. (d) Necessity in a democratic society i. General principles 117. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, 27 September 1999, §§ 88, ECHR 1999-VI). 118. In this regard, a margin of appreciation must be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The Court has noted the following relevant considerations in this respect: (i) In spheres involving the application of social or economic policies, including as regards housing, there is authority that the margin of appreciation is wide, as in the urban or rural planning context where the Court has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation” (see, for example, Buckley, cited above, p. 1292, § 75 in fine, and Ćosić, cited above, § 20); (ii) On the other hand, the margin of appreciation left to the authorities will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Since Article 8 concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community, where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (see, among many others, Connors, cited above, § 82); (iii) The procedural safeguards available to the individual will be especially material in determining whether the respondent State has remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, pp. 1292-93, § 76, and Chapman, cited above, § 92). The “necessary in a democratic society” requirement under Article 8 § 2 raises a question of procedure as well of substance (see McCann, cited above, § 26); (iv) Since the loss of one’s home is a most extreme form of interference with the right under Article 8 to respect for one’s home, any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8, notwithstanding that, under domestic law, he has no right of occupation (see Kay and Others v. the United Kingdom, no. 37341/06, § 67-8 and 74, 21 September 2010 and Orlić v. Croatia, no. 48833/07, § 65, 21 June 2011). This means, among other things, that where relevant arguments concerning the proportionality of the interference have been raised by the applicant in domestic judicial proceedings, the domestic courts should examine them in detail and provide adequate reasons ( ibid ., §§ 67-69); (v) Where the national authorities, in their decisions ordering and upholding the applicant’s eviction, have not given any explanation or put forward any arguments demonstrating that the applicant’s eviction was necessary, the Court may draw the inference that the State’s legitimate interest in being able to control its property should come second to the applicant’s right to respect for his home ( ibid ). ii. Application of those principles to the facts of the case α) The Court’s approach in the present case 119. Seeing that the applicants have been ordered to leave under a final binding removal order but its enforcement has been postponed and a significant period has elapsed since then (see paragraphs 35, 52 and 56 above), the Court must examine separately (i) whether the removal order, as it was issued and reviewed by the courts in 2005-2006, was justified under Article 8 § 2 and (ii) whether other events or measures taken by the authorities since then may affect the Court’s conclusion on what is necessary in a democratic society. β) Whether the order of 17 September 2005 was justified under Article 8 § 2 120. There is no doubt that the authorities are in principle entitled to remove the applicants, who occupy municipal land unlawfully (see paragraph 111 above). 121. The Court notes, however, that for several decades the national authorities did not move to dislodge the applicants’ families or ancestors and, therefore, de facto tolerated the unlawful Roma settlement in Batalova Vodenitsa (see paragraphs 8, 17 and 92 above). In its view, this fact is highly pertinent and should have been taken into consideration (see, for example, Orlić v. Croatia, § 70, cited above). While the unlawful occupants cannot claim any legitimate expectation to remain, the authorities’ inactivity has resulted in the applicants’ developing strong links with Batalova Vodenitsa and building a community life there. The principle of proportionality requires that such situations, where a whole community and a long period are concerned, be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property. 122. The impugned removal order was based on section 65 of the Municipal Property Act, under which persons unlawfully living on municipal land can be removed regardless of any special circumstances, such as decades-old community life, or possible consequences, such as homelessness. Under the relevant domestic law, as in force at the time, the municipal authorities were not required to have regard to the various interests involved or consider proportionality (see paragraphs 38, 66 and 72 above). Relying on this legal framework, the municipal authorities did not give reasons other than to state that the applicants occupied land unlawfully and, in the judicial review proceedings, the domestic courts expressly refused to hear arguments about proportionality and the lengthy period during which the applicants and their families had lived undisturbed in Batalova Vodenitsa (see paragraphs 29-31 and 36-38 above). 123. In cases such as the present one, this approach is in itself problematic, amounting to a failure to comply with the principle of proportionality. Under Article 8 of the Convention, the removal order against the applicants can only be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued (see the case ‑ law cited in paragraphs 121 and 122 above). 124. The Court further observes that it is undisputed that the houses of most applicants do not meet basic sanitary and building requirements, which entails safety and health concerns. It considers, however, that in the absence of proof that alternative methods of dealing with these risks have been studied seriously by the relevant authorities, the Government’s assertion that the applicants’ removal is the appropriate solution is weakened and cannot in itself serve to justify the removal order. 125. Indeed, the Bulgarian authorities have recognised, as can be seen from their long-term programmes and declarations on Roma inclusion and housing problems, as well as from projects realised in other parts of Sofia or elsewhere in the country, that a wide range of different options are to be considered in respect of unlawful Roma settlements. Among those are legalising buildings where possible, constructing public sewage and water-supply facilities and providing assistance to find alternative housing where eviction is necessary (see paragraphs 60-63, 65, 69, 70, 73-83 and 95 above). While some of these options are directly relevant to achieving appropriate urban development and removing safety and health hazards, the Government have not shown that they were considered in the case at hand. 126. In addition, it is noteworthy that before issuing the impugned order the authorities did not consider the risk of the applicants’ becoming homeless if removed. They attempted to enforce the order in 2005 and 2006 regardless of the consequences and, while they signed an agreement containing an undertaking to secure alternative shelter, they later disregarded it and declared that the risk of the applicants’ becoming homeless was “irrelevant” (see paragraphs 27-42 above). The Court considers, however, that in the specific circumstances of the present case, in view, in particular, of the long history of undisturbed presence of the applicants’ families and the community they had formed in Batalova Vodenitsa, the principle of proportionality required that due consideration be given to the consequences of their removal and the risk of their becoming homeless. 127. The Court also notes that there is no indication that the construction plans invoked by the Government ever moved close to the stage of implementation. The Government have not shown, therefore, that the land was urgently needed for the public need they mentioned. Proportionality in cases such as the present one is inextricably linked to the use for which the authorities seek to recover the land. In principle, in cases where the domestic authorities have considered these matters, the Court would normally accept their conclusion unless manifestly unreasonable. As there is no evidence of such an attempt, the Court cannot but attach less weight to the alleged importance of the development plans for the land currently occupied by the applicants. 128. Furthermore, it transpires from statements made by municipal officials and the Government’s submissions before the Court that at the local level, in the present case, the authorities have refused to consider approaches specially tailored to the needs of the Roma community on the ground that such an attitude would amount to discrimination against the majority population. In this connection, in the Court’s view, there would appear to be a contradiction between, on the one hand, adopting national and regional programmes on Roma inclusion, based on the understanding that the applicants are part of an underprivileged community whose problems are specific and must be addressed accordingly, and, on the other hand, maintaining, in submissions to the Court, as the respondent Government did in this case, that so doing would amount to “privileged” treatment and would discriminate against the majority population (see paragraphs 41, 60-63 and 95-98 above). 129. The latter argument fails to recognise the applicants’ situation as an outcast community and one of the socially disadvantaged groups (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007 ‑ IV, with further references). Such social groups, regardless of the ethnic origin of their members, may need assistance in order to be able effectively to enjoy the same rights as the majority population. As the Court has stated in the context of Article 14 of the Convention, that provision not only does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them but, moreover, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (see D.H. and Others v. the Czech Republic, cited above, § 175; “Case relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, § 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-...). In the context of Article 8, in cases such as the present one, the applicants’ specificity as a social group and their needs must be one of the relevant factors in the proportionality assessment that the national authorities are under a duty to undertake. 130. The above does not mean that the authorities have an obligation under the Convention to provide housing to the applicants. Article 8 does not in terms give a right to be provided with a home (see, Chapman, cited above, § 99) and, accordingly, any positive obligation to house the homeless must be limited (see O’Rourke v. the United Kingdom (dec.), no. 39022/97, ECHR 26 June 2001). However, an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases ( ibid .; see, also, mutatis mutandis, Budina v. Russia (dec.), no. 45603/05, 18 June 2009). 131. It is also true that the applicants themselves have not been active in seeking a solution (see paragraphs 13, 43 and 51 above). It appears that they are reluctant to seek social housing at least partly because they do not want to be dispersed, find it difficult to cover the related expenses and, in general, resent the radical change of their living environment that moving into blocks of flats would entail. However, Article 8 does not impose on Contracting States an obligation to tolerate unlawful land occupation indefinitely (see Chapman, cited above, § 96, which concerns a very specific and relatively narrow positive obligation to facilitate itinerant way of life which is determinative of an identity). 132. The relevant point in this case is, nonetheless, that the disadvantaged position of the social group to which the applicants belong could and should have been taken into consideration, for example, in assisting them to obtain officially the status of persons in need of housing which would make them eligible for the available social dwellings on the same footing as others. This has been recognised by the Bulgarian authorities in their national and regional programmes but that did not result in practical steps being taken in the present case (see paragraphs 55-59 and 61-65 above). 133. In general, the underprivileged status of the applicants’ group must be a weighty factor in considering approaches to dealing with their unlawful settlement and, if their removal is necessary, in deciding on its timing, modalities and, if possible, arrangements for alternative shelter. This has not been done in the present case. 134. In sum, the Court finds that the respondent Government failed to establish that the removal order of 17 September 2005 was necessary in a democratic society for the achievement of the legitimate aims pursued. γ) Whether events since 2005-2006 would render the enforcement justified 135. It is true that in the years since September 2005 the fate of the Batalova Vodenitsa area has been the subject of negotiations, discussions and examination by consultative bodies such as the National Council for Cooperation on Ethnic and Demographic Issues. The Council apparently recommended consideration of alternative modes of action and a more balanced solution. The Government and the local authorities in Sofia declared on several occasions that they planned to find a solution to the applicants’ housing problem by providing them with alternative shelter (see paragraphs 33, 44, 55, 57 and 96 above). It is also true that several programmes on Roma housing problems have been adopted at the national and regional level in Bulgaria (see paragraphs 60-63 above) and that, apparently, some projects in other locations have been undertaken. All this may suggest that the authorities are seeking a proportionate approach, combining the enforcement of building planning rules with positive measures to assist the individuals concerned. 136. The Court cannot but observe, however, that these discussions and programmes were not part of a formal procedure before a body in which power to modify the impugned order for the applicants’ removal was vested and, in any event, they did not result in any legal act concerning the applicants concretely. The order of 17 September 2005 has remained in force and is still enforceable. Although the mayor of the relevant district suspended the applicants’ removal temporarily, it is significant that, as it appears from the material submitted to the Court, there has been no decision to re-examine the order of 17 September 2005 or tie its enforcement to the implementation of appropriate measures to secure respect for the applicants’ Article 8 rights (see paragraphs 41, 45-48 and 56 above). 137. In these circumstances, it cannot be considered that the above-mentioned post hoc discussions have secured the fair decision-making process that is indispensable for the discharge of the respondent State’s duties under Article 8 of the Convention or that “necessity in a democratic society” was otherwise demonstrated. 138. The Government have also argued that repeated complaints by neighbours, including in 2008 and 2009, would justify the enforcement of the removal order (see paragraphs 93 and 97 above). 139. It appears undisputed between the parties that, before 2005 and since then, there have been repeated complaints by residents of blocks of flats adjacent to the land at issue in which two main issues were raised: (i) sanitary risks mainly related to the lack of sewage and the fact that the applicants’ homes do not meet building requirements and (ii) offences and disturbances of public order allegedly committed by the residents of the unlawful settlement in Batalova Vodenitsa (see paragraphs 20-25, 42 in fine, 56, 93 and 97 above). 140. On the first issue, the Court has already found that health risks of that kind could in principle justify the impugned measures, had it been demonstrated – which is not so in the present case – that the removal order respected the principle of proportionality (see paragraphs 120-134 above). 141. As to the second issue, the Court accepts that the authorities were under a duty to act in response to the neighbours’ allegations about offences and disturbances in the area. It was their responsibility to apply the law and, if necessary, investigate the alleged offences and sanction the individuals concerned. The respondent Government have not provided any evidence of such action having been taken. 142. Some of the neighbours’ complaints, however, also contained illegitimate demands, such as to have the applicants “returned to their native places” (see paragraph 93 above). It is also clear that the situation that obtained was characterised by tension that risked fuelling animosity between two social and ethnic groups. It was therefore important to act in such a manner that the authorities were not seen as being influenced by hostile attitudes of one group against another. However, the Court is not convinced that these subsequently raised illegitimate demands played any role in the initial decision-making process for the issuing of the removal order in question. 143. In sum, the events since the removal order was issued and reviewed by the domestic courts do not provide a basis for a conclusion that its future enforcement would be justified. (e) Conclusion as regards Article 8 144. The above considerations are sufficient for the Court to reach the conclusion that there would be a violation of Article 8 in the event of enforcement of the deficient order of 17 September 2005 as it was based on legislation which did not require the examination of proportionality and was issued and reviewed under a decision-making procedure which not only did not offer safeguards against disproportionate interference but also involved a failure to consider the question of “necessity in a democratic society”. 2. Article 14 in conjunction with Article 8 145. The parties’ submissions are summarised in paragraphs 85-99 above. In essence, the applicants complained that the removal order was based on racist attitudes against them and the Government maintained that the removal order was justified and that the applicants could not claim a privileged treatment. 146. It is undisputed that Article 14 applies in the present case, seeing that discrimination is alleged in relation to the applicants’ right to respect for their homes and private life and, therefore, in respect of issues falling within the ambit of Article 8 (see, for example, E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008, and Larkos v. Cyprus [GC], no. 29515/95, § 28, ECHR 1999 ‑ I). 147. The Court observes, however, that the issue before it is whether a hypothetical future enforcement of the removal order would be discriminatory. The Court cannot speculate about the timing and modalities of any such enforcement and assess the Article 14 issue on the basis of a hypothetical scenario. For example, it cannot assume, as urged by the applicants, that the authorities would again seek to remove them at very short notice. 148. The Court also notes that the main argument of the applicants about discrimination concerns the allegation that the authorities were unduly influenced by hostile attitudes and complaints from neighbours. The Court has dealt with relevant aspects of these issues in the context of proportionality under Article 8 (see paragraphs 128-143 above). 149. In these circumstances, the Court finds that no separate issue arises under Article 14 with regard to any future enforcement of the removal order of 17 September 2005. 3. Articles 3 and 13 of the Convention and Article 1 of Protocol No. 1 150. The applicants considered that in the event of enforcement of the order of 17 September 2005 there would also be violations of Articles 3 and 13 of the Convention and Article 1 of Protocol No. 1. The Government disputed this. 151. The Court, noting that the enforcement of the order of 17 September 2005 has been suspended, cannot speculate about the modalities of any future enforcement and cannot assume, as urged by the applicants, that the authorities would again seek to remove them at very short notice or would not offer alternative shelter where appropriate. Nor can it assume that the authorities would damage their belongings or would not allow time to move them. The municipal authorities had stated their intention to issue a separate demolition order in the event of enforcement of the impugned removal order (see paragraph 31 above). 152. In any event, the Court has already found that the enforcement of the removal order of 17 September 2005 would violate the applicants’ rights under Article 8 on the grounds that it was issued and reviewed in a manner which did not secure the minimum procedural safeguards. In these circumstances, there is no reason to doubt that the respondent Government would comply with the present judgment and would not act in violation of the Convention by removing the applicants on the basis of a deficient order. 153. For the reasons set out above, the Court finds it unnecessary to examine the above complaints separately. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 154. The applicants alleged that, apart from any violation of the Convention that would occur in the event of the future enforcement of the removal order, the authorities had already violated their rights under Articles 3, 8, 13 and 14. 155. In particular, in their view, the unjust and arbitrary manner in which the authorities had acted – seeking summarily to remove them after decades of tolerating their presence, disregarding signed agreements and legitimate concerns, moving on the basis of racially biased complaints by non-Roma inhabitants and demonstrating clear indifference to the applicants’ becoming homeless, amounted to treatment of such gravity that it could be characterised as degrading. That treatment was in any event discriminatory. 156. The Government considered that all the actions complained of were lawful and justified under the Convention. 157. The Court accepts that the applicants’ situation in September 2005, when they and their families were given only several days to leave their decades-old homes, was unenviable. The Court has already found that Article 8 would be violated in the event of the removal order of 17 September 2005 being enforced (see paragraph 144 above). 158. It is further relevant that the authorities accepted to suspend the enforcement of the removal order. The Court finds unconvincing the applicants’ argument that, despite the above, they were subjected to treatment beyond the threshold of severity required under Article 3 or suffered a separate violation of Article 8 as a result of the very fact that the authorities announced their decision to remove them and made preparatory moves. It should not be overlooked that the applicants knew at all relevant times that they occupied municipal land unlawfully and could not expect to remain there indefinitely. 159. It is true that serious cases of discriminatory statements by public officials or failure by the authorities to react to racist statements may constitute violations of Article 14 or even Article 3 (see Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, §§ 111-14, ECHR 2005 ‑ VII (extracts), with further references). The Court cannot exclude furthermore that a failure to react to discriminatory attitudes and statements could amount to a violation of Article 14 in conjunction with other Convention provisions, including Article 8. 160. The Court notes, however, that that the applicants’ main complaint concerns a potential violation of the their rights under Article 8. As regards the attitudes and statements complained of, Bulgaria has put in place legal protection mechanisms, such as the possibility to file complaints to the commission set up under the Protection against Discrimination Act or directly bring judicial proceedings. This mechanism apparently functions in practice as seen from relevant examples (see paragraph 71 above) and the applicants have not claimed that they could not resort to it. It cannot be said, therefore, that the national legal system left the applicants defenceless. They could bring legal proceedings with a view to having incidents of hate speech examined and obtain an authoritative condemnation of any racist statements, and compensation. 161. In sum, the Court, having examined in detail the complaints concerning the future enforcement of the removal order of 17 September 2005 (see paragraphs 100-153 above), finds that the applicants have not established convincingly that the additional complaints formulated by them give rise to a separate issue under the Convention. III. APPLICATION OF ARTICLE 46 OF THE CONVENTION 162. The Court finds it appropriate to consider the present case under Article 46 of the Convention, which reads as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 163. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order. Furthermore, it follows from the Convention, and from Article 1 in particular, that in ratifying the Convention the Contracting States undertake to ensure that their domestic legislation is compatible with it (see Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I). 164. Contracting States’ duty in international law to comply with the requirements of the Convention may require action to be taken by any State authority, including the legislature (see Viaşu v. Romania, no. 75951/01, 9 December 2008). 165. In view of the relevant strict provisions in the Municipal Property Act, noted in the present judgment (see paragraphs 122 and 123 above), and the fact that the order of 17 September 2005 is still enforceable in Bulgarian law, it appears necessary to assist the respondent Government in the execution of their duty under Article 46 of the Convention. 166. In particular, in view of its findings in the present case, the Court expresses the view that the general measures in execution of this judgment should include such amendments to the relevant domestic law and practice so as to ensure that orders to recover public land or buildings, where they may affect Convention-protected rights and freedoms, should, even in cases of unlawful occupation, identify clearly the aims pursued, the individuals affected and the measures to secure proportionality. 167. In so far as individual measures are concerned, the Court is of the view that the execution of the present judgment requires either the repeal of the order of 17 September 2005 or its suspension pending measures to ensure that the authorities have complied with the Convention requirements, as clarified in the present judgment. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 168. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 169. The applicants claimed 10,000 euros (EUR) each for non-pecuniary damage. They stated that they had suffered from the fact that they had to live for years under the threat of homelessness and from the alleged racial bias in the authorities’ actions. The applicants requested that any award of damages should be made payable to the bank account of the Bulgarian Helsinki Committee. 170. The Government, objecting to the allegations about discrimination and racist attitudes on the part of the authorities, considered that the finding of a violation of the Convention would constitute sufficient just satisfaction. 171. In the present case, the Court found that there would be a violation of Article 8 of the Convention if the order of 17 September 2005 were enforced. In most cases concerning violations that have not already occurred, the Court considered that the finding of a violation was sufficient just satisfaction (see, mutatis mutandis, Raza v. Bulgaria, no. 31465/08, § 88, 11 February 2010, with further references). It sees no reason to reach a different conclusion in this case. Furthermore, it is relevant that, as noted above, the applicants themselves have not been very active in seeking a solution that would allow them to put an end to their unlawful occupation of land in Batalova Vodenitsa (see paragraphs 13, 43 and 51 above). B. Costs and expenses 172. The applicants claimed EUR 5,786.82 for costs and expenses relating to the domestic proceedings and the proceedings before the Court. This sum included legal fees for eighty-one hours of legal work at the hourly rate of EUR 70 and court fees in the amount of EUR 116.82. The applicants submitted copies of a legal fees agreement, a time sheet and receipts. They requested that any sums awarded under this head should be paid directly into the bank account of the Bulgarian Helsinki Committee, the organisation which provided them with legal assistance. 173. The Government considered that the claim was excessive as the hourly rate claimed allegedly exceeded several times the usual rates charged by lawyers in Bulgaria. 174. Having regard to the relevant criteria and considering that the number of hours of legal work claimed appears to be excessive, the Court awards EUR 4,000 in respect of costs and expenses. C. Default interest 175. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there would be a violation of Article 8 (right to private and family life) of the Convention if the removal order were enforced. It found in particular that the removal order had been based on a law, and reviewed under a decision-making procedure, neither of which required the authorities to balance the different interests involved. |
344 | Rape and sexual abuse | II. RELEVANT DOMESTIC LAW A. Applicable criminal law 24. At the time of the incident, the applicable criminal law was the 1977 Criminal Code of the Socialist Republic of Slovenia. Article 100 of this Code, which defined the criminal offence of rape and was used in the proceedings at issue, stipulated that this offence was to be punishable by a minimum sentence of three years ’ imprisonment. 25. Article 286 § 2 of the Criminal Procedure Act provides that the presiding judge shall schedule a first trial hearing within two months of the receipt of the indictment. If he fails to do so, he must inform the president of the court thereof, and the latter is required to take the necessary steps to schedule the hearing. A provision to this effect was also included in the previously applicable Criminal Procedure Act 1977. B. Applicable civil law 26. Article 148 of the Code of Obligations regulating the liability of legal persons for damage inflicted by one of its subsidiary bodies, which also applies to the determination of the State ’ s liability for damages, provides that a legal person is liable for damage inflicted on a third person by one of its subsidiary bodies in the exercise of its functions or in connection therewith. 27. According to Article 179 of the Code of Obligations, which constitutes the statutory basis for awarding compensation for non-pecuniary damage, such compensation may be awarded, inter alia, in the event of the infringement of a person ’ s personality rights, provided that the circumstances of the case, and in particular the level and duration of the distress and fear caused thereby, justify the award. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 28. The applicant complained under Articles 3 and 8 of the Convention that by protracting the criminal proceedings against her alleged rapists for twenty-five years, the respondent State had failed to provide an effective system of prosecution and trial of the criminal offence committed against her. She also relied on Articles 6 § 1 and 13 of the Convention, alleging that her right to trial within a reasonable time had been violated in these proceedings. 29. The Government contested that argument. 30. Considering that the focus of the applicant ’ s complaint was the domestic authorities ’ lack of promptness in conducting the criminal proceedings concerning sexual offences committed against her, the Court considers that her complaint falls to be examined under Articles 3 and 8 of the Convention, which, in so far as relevant, read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 § 1 “Everyone has the right to respect for his private ... life ...” A. Admissibility 1. Inadmissibility ratione temporis 31. The Government highlighted that Slovenia had ratified the Convention on 28 June 1994 and that a considerable number of the procedural steps taken concerning the criminal trial at issue had occurred before the critical date. Moreover, the incident had taken place many years before that date. In the Government ’ s opinion, the criterion of genuine connection between the event at issue and the entry into force of the Convention was rather loose; however, they refrained from taking a position on whether these procedural steps excluded the present case from the Court ’ s temporal jurisdiction. The Government did, however, point out that the Convention was not binding on Slovenia with regard to acts or facts which had occurred or which were related to a situation which had ceased to exist before 28 June 1994. 32. The Court reiterates that its jurisdiction ratione temporis covers only the period after the date of ratification of the Convention and its Protocols by the respondent State. After ratification, the State ’ s acts must conform to the Convention or its Protocols and subsequent facts fall within the Court ’ s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 43, ECHR 2000-I). 33. With regard to the procedural obligations incumbent on the States, the Court observes that they have been implied in varying contexts under the Convention (see, for example, B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; M.C. v. Bulgaria, no. 39272/98, §§ 148-153, ECHR 2003 ‑ XII; and Cyprus v. Turkey [GC], no. 25781/94, § 147, ECHR 2001 ‑ IV) where this has been perceived as necessary to ensure that the rights guaranteed under the Convention are not theoretical or illusory, but practical and effective ( İlhan v. Turkey [GC], no. 22277/93, § 91, ECHR 2000 ‑ VII). In particular, the Court has interpreted Articles 2 and 3 of the Convention, having regard to the fundamental character of these rights, as containing a procedural obligation to carry out an effective investigation into alleged breaches of the substantive limb of these provisions ( Ergi v. Turkey, 28 July 1998, § 82, Reports of Judgments and Decisions 1998 ‑ IV; Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII; Assenov and Others v. Bulgaria, 28 October 1998, §§ 101-06, Reports 1998 ‑ VIII; and Šilih v. Slovenia [GC], no. 71463/01, § 153, ECHR 2009 ). 34. Moreover, the Court has already held that the procedural obligation to carry out an effective and prompt investigation under Article 2 has evolved into a separate and autonomous duty capable of binding the State, even when the substantive act took place before the critical date (see Šilih, cited above, § 159, and more recently, Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 141-150, 21 October 2013). For such a procedural obligation to come into effect, a significant proportion of the investigating steps required by this provision will have been or ought to have been taken after the critical date (see Janowiec and Others, § 142). The Court has also applied this principle to cases concerning deaths at the hands of private individuals (see Lyubov Efimenko v. Ukraine, no. 75726/01, § 63, 25 November 2010, and Frandeş v. Romania ( dec. ) no. 35802/05, 17 May 2011). Finally, in Tuna v. Turkey (no. 22339/03, § 58, 19 January 2010) and in Stanimirović v. Serbia ( no. 26088/06, § 28, 18 October 2011 ), it held that the principles established in Šilih similarly applied to the procedural obligation to investigate under Article 3. 35. In the present case, the Court observes that the applicant ’ s complaint of failure to comply with the procedural obligations arising from Article 3 essentially concerns the allegedly excessive duration of the criminal trial for rape against A.M., T.D. and N.T., concerning a rape which took place in 1983, some eleven years before the Convention became operational in respect of Slovenia on 28 June 1994. However, it took the national authorities another fifteen years after the ratification of the Convention to conduct the trial, in which the hearings had not even begun until the entry into force of the Convention. A significant proportion of the proceedings covering a lengthy period of time therefore took place after the critical date. Moreover, the applicant ’ s complaints about the State ’ s failure to conduct an effective and prompt trial pertain to a large extent to this period. In view of this, the Court finds that the alleged procedural violation of Article 3 falls within its temporal jurisdiction and that it is therefore competent to examine this part of the application in so far as they occurred after 28 June 1994. 36. However, as regards the Court ’ s jurisdiction ratione temporis under Article 8 of the Convention, it is noted that in cases such as the present one, where the applicant ’ s complaints are limited to the effectiveness of the investigation and/or trial and Article 3 provides a sufficient legal basis for the State ’ s duty to conduct such an investigation and/or trial of a serious offence against the individual ’ s physical integrity, the Court has already held that it is not necessary to decide whether its temporal jurisdiction also extends to issues under Article 8 (see P.M. v. Bulgaria, no. 49669/07, § 58, 24 January 2012). The Court will therefore confine itself to determining whether the events complained of constituted a breach of the procedural aspect of Article 3 of the Convention. 2. The Government ’ s objection of non-exhaustion of domestic remedies 37. The Government objected that the applicant had failed to exhaust domestic remedies, as she had not introduced an action against the State for compensation of non-pecuniary damage caused by the State authorities based on Articles 148 and 179 of the Code of Obligations. According to the Government, any unlawful conduct on the part of the authorities might constitute a violation of an individual ’ s personality rights. In support of their submissions, they cited eight decisions of the Supreme Court adopted between 1998 and 2009 and three decisions of the Ljubljana Higher Court of 2010 and 2011 showing that unlawful “infringement of personality rights” had been found by the domestic courts to cause mental distress warranting compensation. Moreover, the Government submitted eleven decisions of the Supreme Court, the Ljubljana Higher Court and the Maribor Higher Court, respectively, in which a wide range of rights, such as the rights to personal dignity, to physical and mental integrity, to a healthy living environment, to personal liberty, to respect for the deceased and to the inviolability of the home had been considered as “personality rights”. 38. The applicant challenged the Government ’ s arguments, observing that her application to the Court had been sent by post on 27 December 2006 “when there was no obligation to exhaust all domestic remedies”. 39. The Court notes that the Government has raised a similar objection regarding the availability of a civil action for compensation already in W. v. Slovenia (no. 24125/06, §§ 75-77, 23 January 2014). In that case, the Court found that all of the domestic decisions advanced by the Government related to substantive rights and not to the rights arising from the State ’ s positive obligation to conduct an effective investigation and criminal proceedings. Thus, it held that the action for compensation had not offered the applicant reasonable prospects of success and rejected the Government ’ s objection. Considering that in the present case the Government submitted no domestic jurisprudence refuting this conclusion, the Court sees no reason to depart from the conclusion reached in W. v. Slovenia. 40. It follows that the Government ’ s objection of non-exhaustion of domestic remedies should be dismissed. 3. Conclusion 41. The Court notes that the complaint under Article 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Arguments of the parties (a) The applicant 42. The applicant noted that twenty-five years could not be considered a “normal” duration for criminal proceedings. In her opinion, the inactivity of the national authorities resulted in an outcome where one of the alleged rapists died in 2003 without being convicted and another had disappeared. She also pointed out that at the time of the rape she had been eight months pregnant. Finally, she contended that she had been subject to mockery and derision as a consequence of her rape and that she still suffered from nightmares and uncontrollable fits and had to take medication to overcome these symptoms. (b) The Government 43. The Government first observed that the applicant had only relied upon Articles 6 § 1 and 13 of the Convention in relation to the allegedly excessive duration of the criminal trial. However, the Court had requested that the Government also provide observations on the compliance of the criminal trial with the obligation to conduct an effective investigation arising from Articles 3 and 8 of the Convention. In the light of the applicant ’ s allegations, the Government considered that they would address the question of the effectiveness of the investigation from the viewpoint of the duration of the proceedings. 44. The investigation phase had been conducted with due diligence, as an indictment had been filed four months after the incident. However, the case had not been afforded priority, as the defendants had been released from custody. As regards the duration of the trial, it had mainly been affected by the need to ensure N.T. ’ s presence at trial. Numerous inquiries had been conducted in order to establish his place of residence and/or employment and detention orders and arrest warrants had been issued in his respect. However, as N.T. had emigrated from Slovenia, these attempts had proved unsuccessful and his case had been severed from that of the other accused. Moreover, several of the thirty-one hearings scheduled between October 1995 and May 2004 had had to be adjourned due to the absence of A.M. and T.D. or their defence counsel, while some of them had been rescheduled owing to the absences of the public prosecutor, judge or interpreters. Furthermore, T.D., who had initially accepted the use of the Serbian language in the proceedings, had later requested the presence of a Romani interpreter. However, Romani interpreters had not been included in the list of court interpreters at the time, and it had only been at the court ’ s request that on 13 February 1998 the Ministry of Justice had submitted a list of four people who spoke the Romani language. T.D. had later claimed that he could not understand one of the interpreters provided for him by the court. 45. In the light of the above, the Government argued that the court had continuously tried to conduct the trial within a reasonable time. However, a number of circumstances which had been impossible to prevent or avoid had affected the course of the proceedings. After a judgment had been given at first instance the proceedings had been conducted without lengthy delays: two years had passed between the trial judgment and the appellate ruling, and one year later a second trial judgment had been given. Proceedings at the third level of jurisdiction had been concluded within a year. 2. The Court ’ s assessment 46. The relevant principles concerning the State ’ s obligation inherent in Article 3 of the Convention to investigate cases of ill-treatment, and in particular sexual abuse committed by private individuals, are set out in M.C. v. Bulgaria (cited above, §§ 149, 151 and 153). 47. As regards the Convention requirements relating to the effectiveness of an investigation, the Court has held that any investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible for an offence. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, such as by taking witness statements and gathering forensic evidence, and a requirement of promptness and reasonable expedition is implicit in this context (see Denis Vasilyev v. Russia, no. 32704/04, § 100, 17 December 2009, with further references). The promptness of the authorities ’ reaction to the complaints is an important factor (see Labita v. Italy [GC], no. 26772/95, §§ 133 et seq., ECHR 2000-IV). Consideration has been given in the Court ’ s judgments to matters such as the time taken to open investigations, delays in identifying witnesses or taking statements (see Mătăsaru and Saviţchi v. Moldova, nos. 38281/08, §§ 88 and 93, 2 November 2010), the length of time taken for the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001), and unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations (see Angelova and Iliev v. Bulgaria, no. 55523/00, §§ 101-103, 26 July 2007, and P.M. v. Bulgaria, cited above, § 66 ). 48. Moreover, in so far as the investigation leads to charges being brought before the national courts, the procedural obligations under Article 3 of the Convention extend to the trial stage of the proceedings. In such cases the proceedings as a whole, including the trial stage, must satisfy the requirements of the prohibition of ill-treatment (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 ‑ XII (extracts), and Çelik v. Turkey (no. 2), no. 39326/02, § 34, 27 May 2010). In this respect, the Court has already held that the protection mechanisms available under domestic law should operate in practice in a manner allowing for the examination of the merits of a particular case within a reasonable time (see Ebcin v. Turkey, no. 19506/05, § 40, 1 February 2011, with further references). 49. Turning to the present case, the Court is confronted with an inordinate case as regards the dilatory manner in which the domestic authorities dealt with a serious crime. It is noted that the applicant ’ s complaint was focused on the trial stage of the criminal proceedings concerning the rape committed against her in November 1983. The charges against the three defendants were brought in 1984, ten years before the Convention became operational for Slovenia, however the main hearing did not commence until 18 November 1996 (see paragraph 14 above), a year after the case against N.T. – who had apparently left Slovenia years before and could not be traced – was severed from that of the other two defendants (see paragraph 12 above). Following T.D. ’ s death in 2003, A.M. was convicted of aggravated rape on 3 November 2004 (see paragraph 17 above). The judgment having been quashed on appeal, he was again convicted on retrial (see paragraph 19 above). His subsequent appeal was allowed with regard to the sentence only, and the higher court ’ s judgment was eventually confirmed by the Supreme Court on 3 September 2009 (see paragraph 21 above). 50. Having regard to the above course of proceedings, the Court notes that the criminal trial concerning the applicant ’ s rape was concluded some twenty-six years after the commission of the crime, of which fifteen elapsed after the Convention became operational in respect of Slovenia. Admittedly, the absence of an accused may entail the adjournment of a hearing and therefore some delay in the conduct of the trial. However, the Court has already held that considerable delays in the conduct of criminal proceedings may adversely affect their effectiveness to the detriment of both the defendants and victims, regardless of their outcome (see Ebcin, cited above, § 56). In this regard, adjournments and intervals of total inactivity between hearings appear to have been turned into a “ modus operandi ” for dealing with the applicant ’ s case. While it is true that considerable difficulties were encountered by the district court in attempting to secure the defendants ’ presence, only a very few measures were envisaged beyond conducting inquiries into the defendants ’ places of residence, and even those steps taken did not prove effective. The proposal to place T.D. in detention pending trial for failing to appear at court was rejected, while an international arrest warrant was only issued in respect of N.T. in 2004 (paragraph 14 above), although he had not resided in Slovenia already at the time of the incident and could not be located since 1989. The authorities ’ inaction therefore led to delays which can only be described as manifestly excessive; moreover, little interest was shown in finding N.T. and bringing him to justice. 51. Having regard to the foregoing, the Court cannot consider that the State acted with the necessary diligence in conducting the criminal proceedings concerning the applicant ’ s rape. The domestic authorities have therefore failed to comply with their positive obligations under Article 3 of the Convention. 52. It follows that there has been a violation of the procedural aspect of this provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 54. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. She alleged that as a consequence of post-traumatic distress due to the rape she had been suffering from fear, anxiety and distrust. Her attitude towards sexuality had been impaired, she had been suffering from breast cancer and she had had to undergo psychiatric therapy. She considered that the prejudice suffered was comparable to very severe physical damage with permanent consequences. 55. The Government submitted that they could not be held responsible for the criminal actions of private individuals and that their alleged responsibility only covered their procedural obligations under Articles 3 and 8 of the Convention. The applicant had only claimed to have suffered damage linked with the actual commission of the rape, which had formed the object of the civil proceedings she had instituted at the domestic level and which had been concluded with a settlement. Finally, it had not been proven that the applicant ’ s cancer had been provoked by the rape or by the alleged shortcomings in the criminal trial. 56. The Court considers that the applicant must have sustained non-pecuniary damage as a result of the breach of her rights found in the case. Taking into account all the circumstances, and deciding on an equitable basis, the Court awards the applicant EUR 16,000 in respect of non-pecuniary damage. B. Costs and expenses 57. The applicant also claimed EUR 1,011.31 for costs and expenses incurred before the Court. 58. The Government observed that the applicant ’ s claim did not contain specification of the costs incurred. Under these circumstances, the Government were of the opinion that no award should be made under this head. 59. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum sought by the applicant (EUR 1,011.31) for the proceedings before it. C. Default interest 60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In both cases the Court held that there had been a procedural violation (prohibition of inhuman and degrading treatment) of the Convention, finding that the criminal proceedings regarding the applicants’ rape did not comply with the procedural requirements imposed by Article 3. |
195 | Prohibition of discrimination (Article 14 of the Convention) | RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic legal framework, as at the material timeCriminal Code of Georgia Criminal Code of Georgia Criminal Code of Georgia 25. At the material time, Article 11 1 of the Criminal Code provided that those who could be considered “family members” and could thus be held liable for domestic crimes included former spouses and unmarried partners, as well as legal guardians and custodians. 26. Under Article 53 § 3 1, discrimination on the grounds of, inter alia, gender identity was considered to be a bias motivation and an aggravating circumstance in the commission of a criminal offence, warranting the imposition of a more severe punishment than the commission of the same offence without such discriminatory overtones. 27. Articles 117, 118 and 120 proscribed the offences of intentional infliction of serious bodily injury (punishable by three to six years’ imprisonment), less serious bodily injury (one to three years’ imprisonment) and minor bodily injury (up to two years’ imprisonment). 28. Article 126 1 proscribed the offence of domestic violence, qualifying it as “abusive behaviour by a family member [as defined in Article 11 1 of the Code] consisting of either regular insults, blackmail or degrading treatment which has resulted in physical pain or mental suffering and which has not entailed the consequences provided for in Articles 117, 118 and 120 of the Code.” The offence of domestic violence was punishable by up to one year’s imprisonment. Law of 25 May 2006 on Combating Domestic Violence (“the Domestic Violence Act”) as in force at the relevant time 29. Under section 9 of the Domestic Violence Act, criminal, civil and administrative mechanisms were used for the prevention and combating of domestic violence. Criminal mechanisms were to be applied where the domestic violence in question amounted to a criminal offence. 30. Section 10 provided that either protective or restraining orders could be issued where there were allegations of domestic violence. Protective orders were issued by a court, which could indicate any type of operational measure aimed at protecting the purported victim. Restraining orders could be issued by a police officer at the scene of an incident of domestic violence, which could contain any type of measures aimed at containing the perpetrator. Restraining orders were enforceable immediately, but had to be submitted for judicial approval within twenty-four hours. Failure to comply with the measures indicated in protective and restraining orders could result in either criminal or administrative liability. 31. In accordance with sections 11 and 12, protective and restraining orders could be requested either by the victim or a family member. Protective orders were valid for six months, whilst restraining orders were valid for one month. Section 13 specified that reconciliation between the victim and perpetrator could not suspend the legal force of an order. 32. Under section 16, upon receiving reports of domestic violence, the police had to promptly respond by taking all the measures provided for by law. Those measures included, amongst other things, steps aimed at (i) ending the incident immediately; (ii) conducting separate interviews with the victim, perpetrator and all available witnesses; (iii) informing the victim of her rights; (iv) arranging, if necessary, for the victim to be transferred either to a medical centre or a shelter for victims of domestic violence, and (v) issuing a restraining order and taking all the other measures necessary for protecting the life and well-being of the victim. The police also had to draw up a comprehensive written report indicating all the details concerning the incident of domestic violence and information about the operational measures taken in response. The report had to be presented to a public prosecutor. If appropriate, the police were also under an obligation to notify the public prosecutor of the abuser’s failure to comply with a protective or restraining order, so that the question of whether to initiate criminal proceedings could be considered. 33. Sections 17 and 18 provided that the Ministry of Labour, Health and Social Affairs was responsible for providing special temporary shelters for victims of domestic violence, as mentioned in the preceding section. The shelters had to be properly equipped and fit to accommodate victims in comfortable living conditions. A victim could initially stay in the shelter for three months, to be extended with the approval of the administration of the shelter if required. Section 18 1 also provided that crisis centres would be put in place, administered by the above-mentioned Ministry, in order to provide victims of domestic violence with psychological and medical assistance and legal aid. 34. Section 20 provided for the possibility of isolating an alleged perpetrator of domestic violence from the victim by transferring him to a special rehabilitation centre under the responsibility of the Ministry of Labour, Health and Social Affairs. Such facilities had to be equipped with adequate living conditions and provide psychological and medical assistance. International materialsConvention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”) Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”) Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”) 35. The Istanbul Convention, which applies to all forms of violence against women and provides a comprehensive framework to prevent, prosecute and eliminate such violence and to protect victims, was ratified by and entered into force with respect to Georgia on 19 May and 1 September 2017 respectively. Committee of Ministers’ Recommendation 2002(5) on the protection of women against violence 36. In its Recommendation (2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe recommended, amongst others, that member States should “have an obligation to exercise due diligence to prevent, investigate and punish acts of violence, whether those acts are perpetrated by the state or private persons, and provide protection to victims”. 37. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children’s rights are protected during proceedings. United Nations Committee on the Elimination of Discrimination against Women (CEDAW) 38. On 24 July 2014 CEDAW issued concluding observations on a periodic report of Georgia. The relevant excerpts read as follows: “ Stereotypes and harmful practices 18. The Committee regrets that, notwithstanding the efforts by the State party to implement the recommendations contained in its previous concluding observations (CEDAW/C/GEO/CO/3, para. 18), patriarchal attitudes and stereotypes regarding the roles and responsibilities of women and men in the family and in society remain deeply rooted and are exacerbated by the increased sexualization of women in the media, which undermines the social status, participation in public life and professional careers of women. ... Violence against women 20. The Committee notes the adoption of legislation on elimination of domestic violence, including protection of and assistance to victims, in 2006, the criminalization of domestic violence in 2012 and the adoption of an action plan to combat domestic violence and implement measures to protect victims, covering the period 2013-2015. The Committee also notes that the State party has signed the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence and will ratify it in the third quarter of 2014. It is concerned, however, at the: (a) Growing number of women who are murdered by their husbands or partners and of women who are victims of other forms of violence, including psychological, physical, economic and sexual violence; (b) Low rate of reporting of cases of sexual and domestic violence against women owing to stigma and fear of the perpetrator, in addition to lack of trust in law enforcement agencies, which sometimes refuse to register complaints of domestic violence; (c) Lack of State-funded crisis centres and shelters for women who are victims of domestic violence, especially in rural areas; ...” United Nations Human Rights Committee 39. On 19 August 2014 the Human Rights Committee, a body established under the International Covenant on Civil and Political Rights, issued concluding observations on a periodic report of Georgia. The relevant excerpt reads as follows: “While acknowledging the measures taken to combat domestic violence, including its criminalization in June 2012, the Committee is concerned that domestic violence remains underreported owing to gender stereotypes, lack of due diligence on the part of law enforcement officers in investigating such cases and insufficient protection measures for victims, including insufficient enforcement of restrictive and protective orders and a limited number of State-funded shelters and support services.” United Nations Special Rapporteur on Violence against Women 40. On 9 June 2016 a report of the Special Rapporteur on violence against women, its causes and consequences on her mission to Georgia was published. The relevant excerpts read as follows: “ Violence against women, including domestic violence 10. ... [D]omestic violence, including physical, sexual and psychological abuse, is still considered a private matter and not an issue of public concern in most parts of the country. The incidence of domestic violence is still underreported, partly owing to the lack of public awareness about this societal problem, fear of retaliation and stigmatization, a lack of trust in law enforcement agencies and the low quality of existing services and protection mechanisms for victims of violence. 11. A national study conducted in 2009 shows that 1 in 11 of the women interviewed had experienced physical or sexual abuse at the hands of her husband or intimate partner and 34.7 per cent of women had been injured as a result of physical or sexual violence. Perpetrators of violence against women also include former intimate partners and family members. The main patterns of violence are physical, sexual, psychological and economic abuse, as well as coercion. 12. During the first half of 2015, the Public Defender’s Office registered 1,478 cases of domestic violence. In 93 per cent of the cases registered, the perpetrator was a man and in 87 per cent of cases the victims were women. The Special Rapporteur regrets that the estimates for cases of domestic violence are based on the number of restraining orders issued, leaving invisible an undefined number of cases and not reflecting the real amplitude of this scourge. She is concerned that some cases are registered by the police under the category of “family conflict”, which may also render cases of domestic violence invisible. ... 14. The Special Rapporteur notes that the factors most likely to increase the risk of intimate-partner violence include discriminatory gender stereotypes and patriarchal attitudes, women’s low awareness of their rights, the occurrence of child and forced marriages and a lack of economic independence. In addition, the consumption of alcohol, economic problems and unemployment also contribute to the occurrence of domestic violence. ... Femicides or gender-related killings of women 19. In 2014, the Committee on the Elimination of Discrimination against Women expressed concern about the growing number of women killed by their intimate partners and recommended that measures should be taken to prevent such killings. In 2015, as part of the follow-up to the recommendations, the Public Defender’s Office published a special report on violence against women and domestic violence in Georgia, in which it provided data on 34 women killed because of their gender in 2014. The Special Rapporteur was informed that in 2015 fewer femicides and gender-related killings had been registered. 20. The Special Rapporteur noted that in many cases of killings committed by former or current intimate partners, the victims had reported acts of violence to the police but had not been provided with adequate and effective protection ... Protection 89. The mandate holder was informed that, in numerous cases, victims of domestic violence have to report cases of violence several times to the police before a restraining order is issued. For example, she was informed that in 2013, the police were called to more than 5,447 incidents of domestic “conflict”, but that only 212 restraining orders were issued. It was also reported that victims are not well informed by police officers, who sometimes do not explain that it is possible to request a restraining order. ... 92. Nevertheless, the mandate holder expresses serious concerns about the persistence of stereotypes among police officers and the fact that some police officers in rural areas still issue “warning letters”, devoid of any legal value, through which perpetrators agree not to exercise violence against their partner. She stresses the fact that such letters do not provide protection for victims and do not permit a person to be held to account for acts of violence committed in the past. 93. The Special Rapporteur is also concerned that some cases of violence are still registered by the police as “family conflict” cases and no assessment is carried out to ascertain the danger to the life of the victim. She was informed that in numerous cases the police do not provide adequate assistance, or information on shelters or restraining orders, to victims of domestic violence and that in many cases, investigations are halted when a victim withdraws her statement. Reports suggest that the police do not adequately document cases involving domestic violence and point to weaknesses with regard to the collection of evidence and the drafting of police reports, which can hinder the prosecution of perpetrators of violence. The mandate holder was informed that despite the new obligation for the police to immediately notify the victim of domestic violence when the convicted perpetrator leaves prison, the implementation of this requirement has been poor. All these issues may expose the victim to more violent, or even fatal, attacks by the perpetrator. Prosecution 94. The Special Rapporteur was informed about difficulties in initiating criminal proceedings without the victim’s complaint, as there is no ex officio prosecution of perpetrators of domestic violence. Interlocutors also reported that prosecutors do not conduct timely and effective investigations into cases of domestic violence. The number of prosecutions is low, in comparison with the number of cases reported.” THE LAW ALLEGED VIOLATIONS OF ARTICLES 2 and 14 OF THE CONVENTION 41. The applicant complained under Articles 2 and 14 of the Convention of the domestic authorities’ failure to protect her daughter from domestic violence and to conduct an effective criminal investigation into the circumstances which had contributed to her death. The relevant parts of these provisions read as follows: Article 2 “1. Everyone’s right to life shall be protected by law ...” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex ..., or other status.” Admissibility 42. The Government did not submit any objection as to the admissibility of the complaints under Articles 2 and 14 of the Convention. 43. The Court notes that these complaints are neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions 44. The applicant submitted that, despite being aware of the danger posed to her daughter’s life by L.M.’s violent behaviour, the police had nevertheless failed to take the necessary preventive measures. She complained that they had inadequately and inaccurately gathered and recorded evidence when dealing with her daughter’s allegations of domestic violence. The applicant submitted that the inappropriate and discriminatory responses of the police and the prosecution authority to the numerous complaints she and her daughter had made about L.M.’s abusive behaviour, coupled with the relevant authorities’ failure to investigate the circumstances which had contributed to her daughter’s death and to hold all those involved criminally responsible, were central to the breach by the respondent State of its positive obligations under Articles 2 and 14 of the Convention. 45. Without disputing the facts of the case as submitted by the applicant, and without contesting her legal arguments, the Government limited their comments to providing the Court with an overview of various legislative, budgetary and administrative measures taken by the respondent State in the field of combating domestic violence and, more generally, violence committed against women from 2014 onwards. In that respect, they submitted information about various training and awareness-raising courses provided, between 2015 and 2017, to the judicial, prosecutorial and law-enforcement authorities on the problem of violence against women. The third party’s submissions 46. The Office of the Public Defender (Ombudsman) of Georgia submitted information about the work that it had undertaken on the protection of women’s rights in the country, with particular emphasis on the causes, extent and consequences of discrimination against women. The third party referred to the pattern of systemic violence committed against women as one such consequence. It submitted that violence against women in Georgia was widespread and occurred both in private and in public, in urban and rural areas. It was the persistence of entrenched patriarchal attitudes and gender stereotypes that made gender-based violence tolerated. The Court’s assessment 47. Having regard to the applicant’s allegations that the domestic authorities’ double failure – the lack of protection of her daughter’s life and the absence of an effective investigation into the circumstances that had contributed to her death – stemmed from their insufficient acknowledgment of the phenomenon of discrimination against women, the Court finds that the most appropriate way to proceed would be to subject the complaints to a simultaneous dual examination under Article 2 taken in conjunction with Article 14 of the Convention (for application of the same methodology in the context of Article 3 complaints, see Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 36, 8 October 2020, with further references; and, as regards Article 2 complaints, see, for instance, Lakatošová and Lakatoš v. Slovakia, no. 655/16, § 78, 11 December 2018, with further references). (a) General principles 48. Article 2 of the Convention requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002‑I). This substantive positive obligation involves, firstly, a primary duty on the State to secure the right to life by putting in place a legislative and administrative framework designed to provide effective deterrence against threats to the right of life (see Öneryıldız v. Turkey, [GC] no. 48939/99, § 89, ECHR 2004-XII). Secondly, in appropriate circumstances there is a duty on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007). Victims of domestic violence, who fall into the category of vulnerable individuals, are entitled to State protection, in particular (see Talpis v. Italy, no. 41237/14, § 99, 2 March 2017). Whenever there are any doubts about the occurrence of domestic violence or violence against women, an immediate response and further special diligence is required of the authorities to deal with the specific nature of the violence in the course of the domestic proceedings (see Kurt v. Austria [GC], no. 62903/15, § 165-66, 15 June 2021, and Volodina v. Russia, no. 41261/17, § 92, 9 July 2019). 49. Bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the obligation to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For such a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. This is a question which can only be answered in the light of all the circumstances of any particular case. The risk of a real and immediate threat must be assessed, taking due account of the particular context of domestic violence. In such a situation, it is not only a question of an obligation to afford general protection to society, but above all to take account of the recurrence of successive episodes of violence within a family (see Talpis, cited above, § 122). Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice (see Opuz v. Turkey, no. 33401/02, §§ 129-30, ECHR 2009). However, in domestic violence cases, perpetrators’ rights cannot supersede victims’ human rights to life and to physical and psychological integrity (see Talpis, cited above, § 123). 50. The Court reiterates that the obligation to protect life under Article 2 of the Convention requires that there be some form of effective official investigation when individuals have been killed either by State officials or private individuals (see Mazepa and Others v. Russia, no. 15086/07, § 69, 17 July 2018). In order to be “effective” in the context of Article 2 of the Convention, an investigation must firstly be adequate, that is to say it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible, where those responsible are State agents, but also where they are private individuals (see Lakatošová and Lakatoš, cited above, § 73). The obligation to conduct an effective investigation is an obligation which concerns the means to be employed, and not the results to be achieved (see Mižigárová v. Slovakia, no. 74832/01, § 93, 14 December 2010), but the nature and degree of scrutiny satisfying the minimum threshold of effectiveness depends on the circumstances of the particular case, and it is not possible to reduce the variety of situations which might occur to a bare checklist of acts of investigation or other simplified criteria (see Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000‑VI). A requirement of promptness and reasonable expedition is implicit in the context of an effective investigation within the meaning of Article 2 of the Convention (see, amongst many others, Talpis, cited above, § 106). 51. The Court also reiterates that a State’s failure to protect women against domestic violence breaches their right to equal protection before the law and that this failure does not need to be intentional. It has previously held that “the general and discriminatory judicial passivity [creating] a climate that was conducive to domestic violence” amounted to a violation of Article 14 of the Convention (see Opuz, cited above, §§ 191 et seq.). Such discriminatory treatment occurred where it could be established that the authorities’ actions were not a simple failure or delay in dealing with the violence in question, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the complainant as a woman (see Talpis, cited above, § 141). Where there is a suspicion that discriminatory attitudes induced a violent act, it is particularly important that the official investigation be pursued with vigour and impartiality, having regard to the need to continuously reassert society’s condemnation of such acts and to maintain the confidence of minority groups in the ability of the authorities to protect them from discriminatory violence. Compliance with the State’s positive obligations requires that the domestic legal system demonstrate its capacity to enforce criminal law against the perpetrators of such violent acts (see Sabalić v. Croatia, no. 50231/13, § 95, 14 January 2021). Without a strict approach from the law‑enforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes (see Identoba and Others v. Georgia, no. 73235/12, § 77, 12 May 2015, with further references). (b) Application of these principles to the circumstances of the case (i) Substantive positive obligations 52. At the outset, having regard to the relevant criminal-law provisions, as well as the additional deterrence mechanism contained in the Domestic Violence Act (see paragraphs 25-34 above), the Court, in the absence of any arguments to the contrary by the applicant, is satisfied that there existed an adequate legislative and administrative framework designed to combat domestic violence against women in the country in general. It is rather the manner of implementation of this deterrent mechanism by the law-enforcement authorities, that is to say the issue of compliance with the duty to take preventive operational measures to protect the applicant’s life, which raises serious concerns in the present case. In its assessment of the latter issue, the Court must answer the following three questions: whether a real and immediate danger emanating from an identifiable individual existed, whether the domestic authorities knew or ought to have known of the threat, and, should the above two questions be answered in the affirmative, whether the authorities displayed special diligence in their response to the threat (see, for instance, Opuz, cited above, §§ 130 and 137-49, and also compare Kurt, cited above, §§ 161-79). 53. The Court notes that, according to the material in the case file, within a very tight time frame of some six months, between 29 April and 16 October 2014, M.T. and the applicant requested help from the police on at least eleven occasions. In their statements, they always clearly conveyed, by describing all the relevant details, the level of violence in L.M.’s behaviour. The latter himself admitted on one occasion that he had been threatening to kill the applicant’s daughter. L.M.’s parents also confirmed to the police the dangerousness of their son’s conduct, especially when drunk. Moreover, the police knew that L.M. suffered from pathological jealousy and had other mental instabilities, had difficulties in managing his anger and furthermore had a criminal record and history of drug and alcohol abuse. The police were also aware that M.T. carried various defence weapons with her all the time and experienced extreme fear and anxiety at seeing her partner approaching either her flat or workplace (see paragraphs 7-18 above). All these considerations confirmed the reality of the danger caused by L.M. to M.T. Furthermore, when examining the history of their relationship, the Court notes that the violence to which the applicant’s daughter was subjected cannot be seen as individual and separate episodes but must instead be considered a lasting situation. Where there is a lasting situation of domestic violence, there can hardly be any doubt about the immediacy of the danger posed to the victim (compare Opuz, cited above, §§ 134 and 135; Talpis, cited above, § 121; Branko Tomašić and Others v. Croatia, no. 46598/06, §§ 52 and 53, 15 January 2009; and contrast Tërshana v. Albania, no. 48756/14, § 151, 4 August 2020). The Court thus concludes that the police knew or certainly ought to have known of the real and immediate threat to the safety of the applicant’s daughter. 54. As regards the requirement of special diligence, the Court discerns several major failings on the part of the law-enforcement authorities. Firstly, there are indications of inaccurate or incomplete evidence-gathering by the police officers. In this connection, the Court considers that shortcomings in the gathering of evidence in response to a reported incident of domestic violence can result in an underestimation of the level of violence actually committed, can have deleterious effects on the prospects of opening a criminal investigation and even discourage victims of domestic abuse, who are often already under pressure from society not to do so, from reporting an abusive family member to the authorities in the future. It is also significant in this connection that, when recording the incidents, the police officers do not appear to have conducted a “lethality risk assessment” in an autonomous, proactive and comprehensive manner (compare Kurt, cited above, § 168). They did not attach sufficient importance to potential trigger factors for the violence – such as, for instance, L.M.’s alcohol dependency, his pathological jealousy further fuelled by the fact that he and M.T. had separated, and so on – and failed to take into account the victim’s own perceptions of danger, that is, how extremely fearful the applicant’s daughter actually was (see paragraphs 7, 10 and 14-16 above, compare Talpis, cited above, § 118). The police preferred to downgrade the classification of an incident to a “minor family altercation” (compare Kontrova, cited above, § 54). The Court further observes in this connection that, in her relevant report on Georgia, the UN Special Rapporteur on violence against women pointed to the very same shortcomings in the police’s initial responses to domestic violence allegations, identifying those failings as systemic (see paragraph 40 above). 55. Furthermore, it is striking to note that, whilst the domestic legislative framework provided for temporary restrictive measures in respect of the abuser, such as protective and restraining orders, with the latter being able to be immediately issued by a police officer at the scene, the relevant domestic authorities did not resort to them at all (see paragraphs 30 and 31 above, and compare with Talpis, cited above, §§ 113 and 114). There even existed the possibility of isolating the abuser in a special rehabilitation centre (see paragraph 34 above), but the police did not consider that possibility either. What is more, it does not appear from the various reports and records drawn up by the police officers that either the applicant or her daughter were advised by the police of their procedural rights and of the various legislative and administrative measures of protection available to them. On the contrary, it appears that they were misled as the police referred to their inability to arrest the abuser or to apply any other restrictive measure (see paragraphs 9, 11, 13 and 15-16 above). Again, it does not escape the Court’s attention that the reluctance of the police to resort to issuing restraining orders was another systemic problem identified by the UN Special Rapporteur on violence against women (see paragraph 40 above). Even though the police failed to use their best endeavours to appropriately report the various incidents of domestic abuse, the Court notes that, owing to the numerous criminal complaints repeatedly filed by M.T. and the applicant, which clearly and convincingly revealed the gravity of L.M.’s alleged conduct – infliction of physical injuries, incessant verbal death threats, intention to cause a traffic accident, a threat to blow up the victim with a hand grenade, and so on – there still existed plenty of evidence warranting the institution of criminal proceedings against L.M., which would have opened up the possibility of placing him in pre-trial detention. It is deplorable that the law-enforcement authorities did not do so. 56. The Court further observes that the inactivity of the domestic law-enforcement authorities, in particular the police, appears to be even more unforgivable when assessed against the fact that, in general, violence against women, including domestic violence, has been reported to be a major systemic problem affecting society in the country at the material time. According to the relevant statistical data, domestic violence mainly affected women, who accounted for roughly 87% of victims. Several authoritative international monitoring bodies, as well as the Office of the Public Defender of Georgia, attested to this blight on society, reporting that the causes of violence against women were linked to, inter alia, discriminatory gender stereotypes and patriarchal attitudes, coupled with a lack of special diligence on the part of the law-enforcement authorities (see paragraphs 38 ‑ 40 and 46 above). The domestic authorities responsible thus knew or should have known of the gravity of the situation affecting many women in the country and should have thus shown particular diligence and provided heightened State protection to vulnerable members of that group (compare Identoba and Others, cited above, § 72, and also Tërshana, cited above, § 157). In the light of the foregoing, the Court can only conclude that the general and discriminatory passivity of the law-enforcement authorities in the face of allegations of domestic violence, of which the present case is a perfect illustration, created a climate conducive to a further proliferation of violence committed against women. That being so, the respondent State’s failure to take preventive operational measures aimed at protecting the applicant’s daughter, irrespective of whether that failure was intentional or negligent, undermined the rights of the applicant and her daughter to equal protection before the law (compare Opuz, cited above, §§ 184-202, and Talpis, cited above, §§ 145 and 148). 57. All in all, the Court finds that the law-enforcement authorities demonstrated a persistent failure to take steps that could have had a real prospect of altering the tragic outcome or mitigating the harm. In flagrant disregard for the panoply of various protective measures that were directly available to them, the authorities failed to display special diligence to prevent gender-based violence against the applicant’s daughter, which culminated in her death. When assessed against the similar findings of the international and national monitoring bodies, the Court finds that the police inaction in the present case could be considered a systemic failure. The respondent State has thus breached its substantive positive obligations under Article 2 of the Convention read in in conjunction with Article 14. (ii) Procedural positive obligations 58. The Court observes that the perpetrator of the killing was a private individual, and that his responsibility in that regard was never called into question. L.M. immediately killed himself, and any further application of criminal-law mechanisms in respect of him thus became futile. 59. As regards the question of whether, in the particular circumstances of the present case, the State had a further positive obligation to investigate inaction of any of the law-enforcement officials involved and hold them responsible, the Court reiterates that, in cases concerning possible responsibility on the part of State officials for deaths occurring as a result of their alleged negligence, the obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case (see, among many other authorities, Kotilainen and Others v. Finland, no. 62439/12, § 91, 17 September 2020). However, there may be exceptional circumstances where only an effective criminal investigation would be capable of satisfying the procedural positive obligation imposed by Article 2. Such circumstances can be present, for example, where a life was lost or put at risk because of the conduct of a public authority that goes beyond an error of judgment or carelessness. Where it is established that the negligence attributable to State officials or bodies goes beyond an error of judgment or carelessness, in that the authorities in question – fully realising the likely consequences and disregarding the powers vested in them – failed to take measures that were necessary and sufficient to avert the risks, the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy that individuals may exercise on their own initiative (see Zinatullin v. Russia, no. 10551/10, § 33, 28 January 2020). 60. The Court has already established above that the inactivity of the law-enforcement authorities was one of the causes of the descent of the domestic abuse into the killing of the victim. Given that the authorities knew or should have known of the high level of risk that would be faced by the victim if they failed to discharge their policing duties, the Court considers that their negligence went beyond a mere error of judgment or carelessness. However, the prosecution authority disregarded the applicant’s numerous criminal complaints and made no attempt to establish the identity of the police officers, to interview them and to establish their responsibility in relation to their failure to respond properly to the multiple incidents of gender-based violence that preceded the killing of the victim. Furthermore, having lodged a criminal complaint seeking the necessary investigation into the actions of law enforcement in this case, the applicant repeatedly sought but failed to receive information from the Chief Public Prosecutor’s Office. Indeed, it is noteworthy that it took the latter over two years to acknowledge receipt of her correspondence, no further information being provided even then (see paragraphs 21 and 24 above). Not even a disciplinary probe into the alleged police inaction was opened, despite the fact of the applicant’s having complained to the body in charge of disciplinary supervision of police officers (see paragraph 21 above and contrast Bljakaj and Others v. Croatia, no. 74448/12, § 123, 18 September 2014), and no steps were taken to train the police officers on how to respond properly to allegations of domestic violence for the future (see, mutatis mutandis, Lovyginy v. Ukraine, no. 22323/08, § 99, 23 June 2016). However, in the light of the relevant circumstances of the case, namely the existence of discriminatory overtones associated with violence committed against women (see paragraph 56 above), the Court considers that there was a pressing need to conduct a meaningful inquiry into the possibility that gender-based discrimination and bias had also been a motivating factor behind the alleged police inaction (compare, mutatis mutandis, Aghdgomelashvili and Japaridze, cited above, § 40). These shortcomings amount to a breach by the respondent State of its procedural positive obligations under Article 2 read in conjunction with Article 14 of the Convention (compare, mutatis mutandis, Zinatullin, cited above, §§ 40, 41 and 47). APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 62. The applicant claimed 18,240 Georgian laris (GEL – approximately 4,360 euros (EUR)) in respect of pecuniary damage explaining that, owing to M.T.’s death, her granddaughter had lost economic support from her mother. The applicant also claimed EUR 40,000 in respect of non-pecuniary damage on account of the stress and anguish she had experienced as result of the loss of her daughter. 63. The Government submitted that the amounts claimed were not justified in the circumstances of the case. 64. The Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention, and that this may, where appropriate, include compensation for loss of earnings (see, among other authorities, Imakayeva v. Russia, no. 7615/02, § 213, ECHR 2006-XIII (extracts)). However, M.T.’s daughter, who had been economically dependent on her mother, is not an applicant in the present case, and the applicant did not lodge her application on behalf of her granddaughter. Furthermore, the applicant did not claim that she had herself been financially dependent on her daughter before her death (compare, for instance, Kukhalashvili and Others v. Georgia, nos. 8938/07 and 41891/07, § 162, 2 April 2020, and Albekov and Others v. Russia, no. 68216/01, §§ 125‑27, 9 October 2008). Thus, having regard to the fact that the applicant did not show that her own pecuniary interests had been affected by the death of her daughter, the Court does not find it appropriate in the circumstances of this case to make any award to the applicant in respect of pecuniary damage. 65. On the other hand, the Court accepts that the applicant must have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. It finds it appropriate to award the applicant EUR 35,000 under this head. Costs and expenses 66. The applicant claimed 6,975 pounds sterling (GBP – approximately EUR 8,000) for the costs of her representation before the Court by one of her British lawyers. No claim was made with respect to the applicant’s representation by the remaining four (three Georgian and one British) lawyers (see paragraph 2 above). The claimed amount was based on the number of hours which the British lawyer in question had spent on the case (forty-six hours and thirty minutes) and the lawyer’s hourly rate (GBP 150). No copies of the relevant legal service contracts, invoices, vouchers or any other supporting financial documents were submitted. The applicant additionally claimed GBP 402 and 351 United States dollars (approximately EUR 289) for postal expenses, translation expenses and other types of administrative expenses incurred by the same British lawyer. 67. The Government submitted that the claims were unsubstantiated and excessive. 68. The Court notes that a representative’s fees are actually incurred if the applicant has paid them or is liable to pay them (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017). In the present case, the applicant did not submit documents showing that she had paid or was under a legal obligation to pay the fees charged by her British representative or the expenses incurred by her. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred (ibid., § 372; Aghdgomelashvili and Japaridze, cited above, § 61; and Vazagashvili and Shanava v. Georgia, no. 50375/07, §§ 105-08). 69. It follows that the claims must be rejected. Default interest 70. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) taken in conjunction with Article 14 (prohibition of discrimination) of the Convention, finding that the Georgian State had failed to comply with its obligations to protect the life of the applicant’s daughter and to carry out an effective investigation into her death. It noted, in particular, that the police had to have been aware that the applicant’s daughter had been in danger. Despite the various protective measures that they could have implemented, they had failed to prevent gender-based violence against her, which culminated in her death. The Court found that the police inaction could be considered a systemic failure. There was a pressing need to conduct a meaningful inquiry into the possibility that gender-based discrimination and bias had been behind the police’s lack of action. |
127 | Protection from being targeted by paedophiles via the Internet | II. RELEVANT DOMESTIC LAW AND PRACTICE 15. The Finnish Constitution Act ( Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919, as amended by Act no. 969/1995) was in force until 1 March 2000. Its section 8 corresponded to Article 10 of the current Finnish Constitution ( Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), which provides that everyone ’ s right to private life is guaranteed. 16. At the material time, Chapter 27, Article 3, of the Penal Code ( rikoslaki, strafflagen; Act no. 908/1974) provided: “A person who in a manner other than that stated above commits an act of malicious misrepresentation against another by a derogatory statement, threat or other degrading act shall be sentenced for malicious misrepresentation to a fine or to imprisonment for a maximum period of three months. If the malicious misrepresentation is committed in public or in print, writing or a graphic representation disseminated by the guilty party or which the guilty party causes, the person responsible shall be sentenced to a fine or to imprisonment for a maximum period of four months.” 17. At the material time, Chapter 5a, section 3 of the Coercive Measures Act provided: “ Preconditions of telecommunications monitoring Where there is reason to suspect a person of ( 1) an offence punishable by not less than four months ’ imprisonment; ( 2) an offence against a computer system using a terminal device, a narcotics offence; or ( 3) a punishable attempt to commit an offence referred to above in this section; the authority carrying out the criminal investigation may be authorised to monitor a telecommunications connection in the suspect ’ s possession or otherwise presumed to be in his use, or temporarily to disable such a connection, if the information obtained by the monitoring or the disabling of the connection can be assumed to be very important for the investigation of the offence ...” 18. Section 18, subsection 1(1) of the Protection of Privacy and Data Security in Telecommunications Act, which came into force on 1 July 1999 and was repealed on 1 September 2004, provided: “Notwithstanding the obligation of secrecy provided for in section 7, the police have the right to obtain: (1) identification data on transmissions to a particular transcriber connection, with the consent of the injured party and the owner of the subscriber connection, necessary for the purpose of investigating an offence referred to in Chapter 16, Article 9 ( a ), Chapter 17, Article 13 § 2 or Chapter 24, Article 3 ( a ) of the Penal Code (Act no. 39/1889) ...” 19. Section 48 of the Personal Data Act provides that the service provider is under criminal liability to verify the identity of the sender before publishing a defamatory advertisement on its website. Section 47 provides that the service provider is also liable in damages. 20. At the material time, processing and publishing sensitive information concerning sexual behaviour on an Internet server without the subject ’ s consent was criminalised as a data protection offence in section 43 of the Personal Files Act ( Act no. 630/1995 ) and Chapter 38, Article 9 ( Act no. 578/1995) of the Penal Code, and as a data protection violation in section 44 of the Personal Files Act. Furthermore, it could have caused liability in damages by virtue of section 42 ( Act no. 471/1987) of the said Act. 21. Section 17 of the Exercise of Freedom of Expression in Mass Media Act ( laki sanavapauden käyttämisestä joukkoviestinnässä, lagen om yttrandefrihet i masskommunikation; Act no. 460/2003), which came into force on 1 January 2004, provides: “ Release of identifying information for a network message At the request of an official with the power of arrest, a public prosecutor or an injured party, a court may order the keeper of a transmitter, server or other similar device to release information required for the identification of the sender of a network message to the requester, provided that there are reasonable grounds to believe that the contents of the message are such that providing it to the public is a criminal offence. However, the release of the identifying information to the injured party may be ordered only in the event that he or she has the right to bring a private prosecution for the offence. The request shall be filed with the District Court of the domicile of the keeper of the device, or with the Helsinki District Court, within three months of the publication of the message in question. The court may reinforce the order by imposing a threat of a fine.” III. RELEVANT INTERNATIONAL MATERIALS A. The Council of Europe 22. The rapid development of telecommunications technologies in recent decades has led to the emergence of new types of crime and has also enabled the commission of traditional crimes by means of new technologies. The Council of Europe recognised the need to respond adequately and rapidly to this new challenge as far back as in 1989, when the Committee of Ministers adopted Recommendation No. R (89) 9 on computer-related crime. Resolved to ensure that the investigating authorities possessed appropriate special powers in investigating computer-related crimes, in 1995 the Committee of Ministers adopted Recommendation No. R (95) 13 concerning problems of criminal procedural law connected with information technology. In point 12 of the principles appended thereto, it recommended that : “Specific obligations should be imposed on service providers who offer telecommunication services to the public, either through public or private networks, to provide information to identify the user, when so ordered by the competent investigating authority.” 23. The other principles relating to the obligation to cooperate with the investigating authorities stated : “9. Subject to legal privileges or protection, most legal systems permit investigating authorities to order persons to hand over objects under their control that are required to serve as evidence. In a parallel fashion, provisions should be made for the power to order persons to submit any specified data under their control in a computer system in the form required by the investigating authority. 10. Subject to legal privileges or protection, investigating authorities should have the power to order persons who have data in a computer system under their control to provide all necessary information to enable access to a computer system and the data therein. Criminal procedural law should ensure that a similar order can be given to other persons who have knowledge about the functioning of the computer system or measures applied to secure the data therein.” 24. In 1996, the European Committee on Crime Problems set up a committee of experts to deal with cybercrime. It was felt that, although the previous two recommendations on substantive and procedural law had not gone unheeded, only a binding international instrument could ensure the necessary efficiency in the fight against cyberspace offences. The Convention on Cybercrime was opened for signature on 23 November 2001 and came into force on 1 July 2004. It is the first and only international treaty on crimes committed via the Internet and is open to all States. The Convention requires countries to establish as criminal offences the following acts: illegal access to a computer system, illegal interception of computer data, interference with data or a computer system, misuse of devices, computer-related forgery and fraud, child pornography, and the infringement of copyright and related rights. The additional protocol to the Convention on Cybercrime, adopted in 2003, further requires the criminalisation of hate speech, xenophobia and racism. The scope of the Convention ’ s procedural provisions goes beyond the offences defined in the Convention in that it applies to any offence committed by means of a computer system : Article 14 – Scope of procedural provisions “ 1. Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings. 2. ... each Party shall apply the powers and procedures referred to in paragraph 1 of this Article to: ( a) the criminal offences established in accordance with Articles 2 through 11 of this Convention; ( b) other criminal offences committed by means of a computer system; and ( c) the collection of evidence in electronic form of a criminal offence. 3. ... ” 25. The procedural powers include the following: expedited preservation of stored data, expedited preservation and partial disclosure of traffic data, production order, search and seizure of computer data, real-time collection of traffic data and interception of content data. Of particular relevance is the power to order a service provider to submit subscriber information relating to its services; indeed, the explanatory report describes the difficulty in identifying the perpetrator as being one of the major challenges in combating crime in the networked environment: Article 18 – Production order “ 1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order: ( a) a person in its territory to submit specified computer data in that person ’ s possession or control, which is stored in a computer system or a computer-data storage medium; and ( b) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider ’ s possession or control. 2. The powers and procedures referred to in this Article shall be subject to Articles 14 and 15. 3. For the purpose of this Article the term ‘ subscriber information ’ means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services, other than traffic or content data and by which can be established: ( a) the type of communication service used, the technical provisions taken thereto and the period of service; ( b) the subscriber ’ s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement; ( c) any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement. ” 26. The explanatory report notes that, in the course of a criminal investigation, subscriber information may be needed mainly in two situations. Firstly, to identify which services and related technical measures have been used or are being used by a subscriber, such as the type of telephone service used, the type of other associated services used ( for example, call forwarding, voicemail), or the telephone number or other technical address (for example, the e-mail address). Secondly, where a technical address is known, subscriber information is needed in order to assist in establishing the identity of the person concerned. A production order provides a less intrusive and less onerous measure which law enforcement authorities can apply instead of measures such as interception of content data and real-time collection of traffic data, which must or can be limited only to serious offences (Articles 20 and 21 of the Convention on Cybercrime ). 27. A global conference, “Cooperation against Cybercrime”, held in Strasbourg on 1-2 April 2008 adopted the “Guidelines for the cooperation between law enforcement and Internet service providers against cybercrime ”. The purpose of the Guidelines is to help law enforcement authorities and Internet service providers structure their interaction in relation to cybercrime issues. In order to enhance cybersecurity and minimise the use of services for illegal purposes, it was considered essential that the two parties cooperate with each other in an efficient manner. The Guidelines outline practical measures to be taken by law enforcement agencies and service providers, encouraging them to exchange information in order to strengthen their capacity to identify and combat emerging types of cybercrime. In particular, service providers are encouraged to cooperate with law enforcement agencies to help minimise the extent to which services are used for criminal activity as defined by law. B. The United Nations 28. Out of a number of resolutions adopted in the field of cyberspace, the most pertinent for the purposes of the present case are General Assembly Resolutions 55/63 of 4 December 2000 and 56/121 of 19 December 2001 on combating the criminal misuse of information technologies. Among the measures to combat such misuse, it was recommended in Resolution 55/63 that: “(f) legal systems should permit the preservation of and quick access to electronic data pertaining to particular criminal investigations;” 29. The subsequent Resolution took note of the value of the various measures and again invited member States to take them into account. C. The European Union 30. On 15 March 2006 the European Parliament and the Council of the European Union adopted Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, amending the previous data - retention Directive 2002/58/EC. The aim of the Directive is to harmonise member States ’ provisions concerning the obligations of communications providers with respect to the retention of certain data, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. It applies to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It does not apply to the content of electronic communications. The Directive requires member States to ensure that certain categories of data are retained for a period of between six months and two years. Article 5 specifies the data to be retained: “1. Member States shall ensure that the following categories of data are retained under this Directive: (a) data necessary to trace and identify the source of a communication: ... (2) concerning Internet access, Internet e-mail and Internet telephony: ... (iii) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;” 31. Member States had until 15 September 2007 to implement the Directive. However, sixteen States, including Finland, made use of the right to postpone their application to Internet access, Internet telephony and Internet e ‑ mail until 15 March 2009. IV. COMPARATIVE LAW 32. A comparative review of the national legislation of the member States of the Council of Europe shows that in most countries there is a specific obligation on the part of telecommunications service providers to submit computer data, including subscriber information, in response to a request by the investigating or judicial authorities, regardless of the nature of a crime. Some countries have only general provisions on the production of documents and other data, which could in practice be extended to cover also the obligation to submit specified computer and subscriber data. Several countries have not yet implemented the provisions of Article 18 of the Council of Europe Convention on Cybercrime. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION 35. The applicant complained under Article 8 of the Convention that an invasion of his private life had taken place and that no effective remedy existed to reveal the identity of the person who had put a defamatory advertisement on the Internet in his name, contrary to Article 13 of the Convention. Article 8 provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties ’ submissions 36. The applicant submitted that Finnish legislation at the time protected the criminal, whereas the victim had no means to obtain redress or protection against a breach of privacy. Under the Penal Code the impugned act was punishable, but the Government had neglected to ensure that the Protection of Privacy and Data Security in Telecommunications Act and the Coercive Measures Act were consistent with each other. He argued that the random possibility of seeking civil damages, particularly from a third party, was not sufficient to protect his rights. He emphasised that he did not have the means to identify the person who had placed the advertisement on the Internet. While compensation might in some cases be an effective remedy, this depended on whether it was paid by the person who had infringed the victim ’ s rights, which was not the case in his application. According to the Government, new legislation was in place which, had it existed at the time of the events, would have rendered this complaint unnecessary. In the applicant ’ s view, the Government had not provided any justification for the failure to afford him this protection at the material time. He considered, therefore, that there had been breaches of Articles 8 and 13 of the Convention. 37. The Government emphasised that in the present case the interference with the applicant ’ s private life had been committed by another individual. The impugned act was considered in domestic law as an act of malicious misrepresentation and would have been punishable as such, which had a deterrent effect. An investigation had been initiated to identify the person who had placed the advertisement on the Internet, but had proved unsuccessful due to the legislation in force at the time, which aimed to protect freedom of expression and the right to anonymous expression. The legislation protected the publisher of an anonymous Internet message so extensively that the protection also covered messages that possibly interfered with another person ’ s privacy. This side - effect of the protection was due to the fact that the concept of a message interfering with the protection of privacy was not clear cut, and therefore it had not been possible to clearly exclude such messages from the protection provided by law. There were, however, other avenues of redress available, for example the Personal Data Act, which provided protection against malicious misrepresentation in that the operator of the Internet server, on the basis of that Act ’ s provisions on criminal liability and liability in damages, was obliged to ensure that sensitive data recorded by it were processed with the consent of the data subject. Furthermore, although the personal data offence had become time-barred, the applicant still had the possibility of seeking compensation from the publisher of the advertisement. By comparison with the X and Y v. the Netherlands case ( 26 March 1985, Series A no. 91 ), in the present case liability in damages in the context of a less serious offence provided a sufficient deterrent effect. In addition, there were other mechanisms available to the applicant, such as a pre-trial police investigation, prosecution, court proceedings and damages. 38. The Government submitted that it was important to look at the legislative situation at the material time in its social context, when a rapid increase in the use of the Internet was just beginning. The current legislation, the Exercise of Freedom of Expression in Mass Media Act (sections 2 and 17), which took effect on 1 January 2004, gives the police more extensive powers to break the protection of the publisher of an anonymous Internet message for the purposes of criminal investigations. The new legislation reflects the legislator ’ s reaction to social development where increased use – and at the same time abuse – of the Internet has required a redefinition of the limits of protection. Thus, because of a changed situation in society, subsequent legislation has further strengthened the protection of private life in respect of freedom of expression, and especially the protection of the publishers of anonymous Internet messages. 39. However, most essential in the present case was that even the legislation in force at the material time provided the applicant with means of action against the distribution of messages invading his privacy, in that the operator of the Internet server on which the message was published was obliged by law to verify that the person in question had consented to the processing of sensitive information concerning him or her on the operator ’ s server. This obligation was bolstered by criminal liability and liability in damages. Thus, the legislation provided the applicant with sufficient protection of privacy and effective legal remedies. B. The Court ’ s assessment 40. The Court notes at the outset that the applicant, a minor of 12 years at the time, was the subject of an advertisement of a sexual nature on an Internet dating site. The identity of the person who had placed the advertisement could not, however, be obtained from the Internet service provider due to the legislation in place at the time. 41. There is no dispute as to the applicability of Article 8: the facts underlying the application concern a matter of “ private life ”, a concept which covers the physical and moral integrity of the person ( see X and Y v. the Netherlands, cited above, § 22). Although this case is seen in domestic law terms as one of malicious misrepresentation, the Court would prefer to highlight these particular aspects of the notion of private life, having regard to the potential threat to the applicant ’ s physical and mental welfare brought about by the impugned situation and to his vulnerability in view of his young age. 42. The Court reiterates that, although the object of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see Airey v. Ireland, 9 October 1979, § 32, Series A no. 32 ). 43. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. There are different ways of ensuring respect for private life and the nature of the State ’ s obligation will depend on the particular aspect of private life that is at issue. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State ’ s margin of appreciation, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions ( see X and Y v. the Netherlands, cited above, §§ 23 ‑ 24 and 27; August v. the United Kingdom ( dec. ), no. 36505/02, 21 January 2003; and M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII ). 44. The limits of the national authorities ’ margin of appreciation are nonetheless circumscribed by the Convention provisions. In interpreting them, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI). 45. The Court considers that, while this case might not attain the seriousness of X and Y v. the Netherlands, where a breach of Article 8 arose from the lack of an effective criminal sanction for the rape of a girl with disabilities, it cannot be treated as trivial. The act was criminal, involved a minor and made him a target for approaches by paedophiles (see, also, paragraph 41 above in this connection). 46. The Government conceded that, at the time, the operator of the Internet server could not be ordered to provide information identifying the offender. They argued that protection was provided by the mere existence of the criminal offence of malicious misrepresentation and by the possibility of bringing criminal charges or an action for damages against the server operator. As to the former, the Court notes that the existence of an offence has limited deterrent effects if there is no means to identify the actual offender and to bring him to justice. Here, the Court notes that it has not excluded the possibility that the State ’ s positive obligations under Article 8 to safeguard the individual ’ s physical or moral integrity may extend to questions relating to the effectiveness of a criminal investigation even where the criminal liability of agents of the State is not at issue (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports of Judgments and Decisions 1998-VIII). For the Court, States have a positive obligation inherent in Article 8 of the Convention to criminalise offences against the person, including attempted offences, and to reinforce the deterrent effect of criminalisation by applying criminal ‑ law provisions in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, cited above, § 153). Where the physical and moral welfare of a child is threatened, such injunction assumes even greater importance. The Court notes in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 64, Reports 1996 ‑ IV ). 47. As to the Government ’ s argument that the applicant had the possibility to obtain damages from a third party, namely the service provider, the Court considers that it was not sufficient in the circumstances of this case. It is plain that both the public interest and the protection of the interests of victims of crimes committed against their physical or psychological well-being require the availability of a remedy enabling the actual offender to be identified and brought to justice, in the instant case the person who placed the advertisement in the applicant ’ s name, and the victim to obtain financial reparation from him. 48. The Court accepts that, in view of the difficulties involved in policing modern societies, a positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities or, as in this case, the legislator. Another relevant consideration is the need to ensure that powers to control, prevent and investigate crime are exercised in a manner which fully respects the due process and other guarantees which legitimately place restraints on criminal investigations and bringing offenders to justice, including the guarantees contained in Articles 8 and 10 of the Convention, guarantees which offenders themselves can rely on. The Court is sensitive to the Government ’ s argument that any legislative shortcoming should be seen in its social context at the time. The Court notes at the same time that the relevant incident took place in 1999, that is, at a time when it was well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes (see paragraphs 22 and 24 above). Also, the widespread problem of child sexual abuse had become well known over the preceding decade. Therefore, it cannot be said that the respondent Government did not have the opportunity to put in place a system to protect child victims from being exposed as targets for paedophiliac approaches via the Internet. 49. The Court considers that practical and effective protection of the applicant required that effective steps be taken to identify and prosecute the perpetrator, that is, the person who placed the advertisement. In the instant case, such protection was not afforded. An effective investigation could never be launched because of an overriding requirement of confidentiality. Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. Without prejudice to the question whether the conduct of the person who placed the offending advertisement on the Internet can attract the protection of Articles 8 and 10, having regard to its reprehensible nature, it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context. Such framework was not, however, in place at the material time, with the result that Finland ’ s positive obligation with respect to the applicant could not be discharged. This deficiency was later addressed. However, the mechanisms introduced by the Exercise of Freedom of Expression in Mass Media Act (see paragraph 21 above) came too late for the applicant. 50. The Court finds that there has been a violation of Article 8 of the Convention in the present case. 51. Having regard to the finding relating to Article 8, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 of the Convention (see, among other authorities, Sallinen and Others v. Finland, no. 5 0882/99, § § 102 and 110, 27 September 2005, and Copland v. the United Kingdom, no. 62617/00, §§ 50-51, ECHR 2007 ‑ I ). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 53. Under the head of non-pecuniary damage, the applicant claimed 3, 5 00 euros (EUR) for suffering. 54. The Government submitted that the award should not exceed EUR 2,500. 55. The Court finds it established that the applicant must have suffered non-pecuniary damage. It considers that sufficient just satisfaction would not be provided solely by the finding of a violation and that compensation has thus to be awarded. Deciding on an equitable basis, it awards the applicant EUR 3,000 under this head. B. Costs and expenses 56. The applicant claimed EUR 2,500 for costs incurred during the national proceedings and the proceedings before the Court. 57. The Government questioned whether the applicant had furnished the requisite documentation. 58. The Court notes that no documentation as required by Rule 60 of the Rules of Court has been submitted. These claims must therefore be rejected. C. Default interest 59. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It considered that posting the ad was a criminal act which made a minor a target for paedophiles. The legislature should have provided a framework for reconciling the confidentiality of Internet services with the prevention of disorder or crime and the protection of the rights and freedoms of others, and in particular children and other vulnerable individuals. |
942 | Principle of impartiality | II. THE RELEVANT DOMESTIC LAW 20. As applicable at the relevant time, the provisions of the Ordinance concerning the privileges of the House of Representatives were as follows: Section 9 "An oath or affirmation taken or made by a witness or by an expert before the House of Representatives or any Committee thereof shall for the purposes of the Criminal Code (Chapter 12) be comparable to an oath or affirmation taken or made before a Court in civil matters." Section 11 "(1) The House shall have the power to punish with a reprimand or with imprisonment for a period not exceeding sixty days or with a fine not exceeding five hundred liri or with both such fine and such imprisonment, any person, whether a Member of the House or not, guilty of any of the following acts: ... (k) the publication of any defamatory libel on the Speaker or any Member touching anything done or said by him as Speaker or as a Member in the House or in a Committee thereof; ... (4) For the purposes of this section - ‘ publication ’ means any act whereby any printed matter is or may be communicated to or brought to the knowledge of any person or whereby any words or visual images are broadcast; ... (5) A person shall be deemed guilty of the acts mentioned in paragraph[s] (k) ... of subsection (1) of this section if the publication referred to in paragraph[s] (k) ... consists in the publication of such defamatory libel, false or perverted report, or misrepresentation in printed form in Malta, or in the distribution in Malta of such printed matter containing such defamatory libel, false or perverted report, or misrepresentation, from whatsoever place such printed matter may originate, or in any broadcast from any place in Malta or any place outside Malta of any such defamatory libel, false or perverted report, or misrepresentation." Subsection (6) entitles the House to order in the case of a newspaper, in addition to the punishments under subsection (1), the publication in a subsequent issue of the motion finding the accused guilty of an act mentioned in paragraph (k) of subsection (1). Section 13 "(1) ... (2) ... the House may direct the offender to be summoned by notice signed by the Clerk of the House, to appear before it at a specified sitting to answer the charge. (3) If the offender fails to appear, it shall be lawful for the Speaker of the House on the direction thereof, to issue a warrant for the offender to be arrested and brought before the House. ... (5) In all cases the offender shall be given the opportunity to speak in his own defence and, ..., he may be assisted by an advocate. ..." Section 14 "(1) ... (2) When the House fines a person, the fine shall be paid to the Accountant General through the Clerk of the House within two clear days of its infliction. At the next following sitting the Clerk shall report to the Speaker the payment so made or its default; in the latter case the House may decide on the commutation of the fine into a term of imprisonment or give other directions at its discretion." 21. Defamatory libel is a criminal offence under the Press Act 1974 (Act No. XL of 1974). Section 3 of the Act provides: "The offences mentioned in this Part of the Act are committed by means of the publication or distribution in Malta of printed matter, from whatsoever place such matter may originate, or by means of any broadcast." Section 11 of the Act provides: "Save as otherwise provided in this Act, whosoever shall, by any means mentioned in Section 3 of this Act, libel any person, shall be liable on conviction: (a) if the libel contains specific imputations against such person tending to injure his character and reputation, or to expose him to public ridicule or contempt, to imprisonment for a term not exceeding three months or to a fine ( multa ) not exceeding two hundred liri or to both such imprisonment and fine; (b) in any other case, to imprisonment for a term not exceeding one month or to a fine." 22. The Constitution of Malta also refers to the privileges of Parliament. Under section 34 no person is to be deprived of his personal liberty save as may be authorised by law, inter alia, in execution of an order of the House of Representatives punishing him for contempt of itself or of its members or for breach of privilege, or directing that he be brought before it. Section 40 provides for any person charged with a criminal offence to be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. Section 41(1) guarantees freedom of expression with the following proviso under subsection (2): "Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that the law in question makes provision - (a) that is reasonably required - ( i ) in the interests of defence, public order, public morality or decency, or public health; or (ii) for the purpose of [...] protecting the privileges of Parliament [...] ... ." PROCEEDINGS BEFORE THE COMMISSION 23. In his application (no. 13057/87) lodged with the Commission on 22 May 1987, Mr Demicoli submitted that the proceedings against him in the House of Representatives involved the determination of a "criminal charge", within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, and that, in breach of that provision, he had not received a "fair and public hearing ... by an independent and impartial tribunal". He also alleged a failure to observe the presumption of innocence, guaranteed by Article 6 para. 2 (art. 6-2). 24. The Commission declared the application admissible on 15 March 1989. In its report of 15 March 1990 (drawn up in accordance with Article 31) (art. 31), it expressed the unanimous opinion that there had been a breach of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 6 para. 2 (art. 6-2). The full text of the Commission ’ s opinion and of the concurring opinion contained in the report is reproduced as an annex to this judgment [*]. AS TO THE LAW I. PRELIMINARY OBJECTION 25. By way of preliminary objection, the Government pleaded, as they had already done before the Commission, that Mr Demicoli, in lodging his complaint on 22 May 1987, had failed to comply with the rule, in Article 26 (art. 26) of the Convention, that applications to the Commission must be lodged "after all domestic remedies have been exhausted ... and within a period of six months from the date on which the final decision was taken". 26. The Government, relying in particular on the wording and grammatical construction of Article 26 (art. 26), as well as on the travaux préparatoires, argued that the date of the "final decision" was 13 October 1986, the date of the judgment of the Constitutional Court (see paragraph 16 above), that being the final court from which the applicant could have sought a remedy. They submitted that the sentencing of Mr Demicoli by the House of Representatives - which was postponed until 9 December 1986 pending the outcome of the domestic constitutional proceedings (see paragraph 17 above) - was merely the culmination of the breach of privilege proceedings against the accused and could not be considered to be the final decision in regard to the exhaustion of domestic remedies within the terms of Article 26 (art. 26). 27. The proceedings against the applicant culminated in the decision of 9 December 1986 as to his sentence. That was the date on which his position was finally determined. The Court agrees with the Commission that this date must be regarded as the date of the final decision for the purposes of Article 26 (art. 26) of the Convention. 28. The Government ’ s preliminary objection must therefore be rejected. II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 29. The applicant submitted that the charge of breach of privilege of which he was found guilty by the House of Representatives, was a "criminal charge" falling within the ambit of Article 6 (art. 6) of the Convention, which in paragraph 1 (art. 6-1) provides: "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law ..." He alleged that he had not been given a hearing by a tribunal complying with these requirements. A. Applicability of Article 6 PARA. 1 (art. 6-1) 30. The Government submitted that in Maltese law the breach of privilege proceedings taken against the applicant for defamatory libel were not "criminal" but disciplinary in character. This view, contested by the applicant, was not supported by the Commission. It considered that the proceedings in question involved the determination of a "criminal charge" and that Article 6 para. 1 (art. 6-1) was therefore applicable. 31. The Court has already had to determine similar issues in other cases (see the Weber judgment of 22 May 1990, Series A no. 177, p. 17, para. 30, and the other judgments referred to therein). While it is recognized that States have the right to distinguish between criminal offences and disciplinary offences in domestic law, it does not follow that the classification thus made is decisive from the viewpoint of the Convention. The notion of "criminal charge" in Article 6 (art. 6) has an autonomous meaning and the Court must satisfy itself that the line drawn in domestic law does not prejudice the object and purpose of Article 6 (art. 6). In order to determine whether the breach of privilege of which Mr Demicoli was found guilty is to be regarded as "criminal" within the meaning of Article 6 (art. 6), the Court will apply the three criteria which were first laid down in the Engel and Others judgment of 8 June 1976 (Series A no. 22, pp. 34-35, para. 82) and have been consistently applied in the Court ’ s subsequent case-law (see, apart from the judgments referred to above, the Öztürk judgment of 21 February 1984, Series A no. 73, and the Campbell and Fell judgment of 28 June 1984, Series A no. 80). 32. It must first be ascertained whether the provisions defining the offence in issue belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. The legal basis of the proceedings taken against Mr Demicoli was provided by section 11 of the Ordinance (see paragraph 20 above). The applicant argued that the origin of the Maltese law of Parliamentary privilege is to be found in United Kingdom law and that breaches of privilege are referred to as crimes in certain textbooks on English law. As noted by the Commission and the Government, breach of Parliamentary privilege is not formally classified as a crime in Maltese law. In its judgment of 16 May 1986 (see paragraph 15 above), the Civil Court ruled that "the law that provides for the privileges and contempt of the House (chapter 179) is not part of the criminal law of the country". The Constitutional Court, in its judgment of 13 October 1986, did not find it necessary to decide whether "the act constituting the contempt or breach of privilege amounts to a criminal act or not." 33. However, as already noted above, the indication afforded by national law is not decisive for the purpose of Article 6 (art. 6). A factor of greater importance is "the very nature of the offence" in question (see, inter alia, the above-mentioned Campbell and Fell judgment, Series A no. 80, p. 36, para. 71, and the above-mentioned Weber judgment, Series A no. 177, p. 18, para. 32). In this context the applicant quoted from the records of the Parliamentary sittings of 4, 17, 18 and 19 March 1986 to highlight the fact that certain Members of the House equated the proceedings taken against him with criminal proceedings. He pointed out that defamatory libel is a criminal offence under the Press Act 1974 (see paragraph 21 above). The Government, on the other hand, submitted that, although some breaches of privilege may also constitute criminal offences, Parliamentary privilege, being concerned with respect for the dignity of the House, pursued a different aim from that of the criminal law. Moreover, defamatory libel may not only constitute an offence under the criminal law, but may also give rise to a civil claim for damages, which may include punitive damages. Furthermore, the non-criminal nature of breaches of privilege was illustrated by the fact that the Ordinance treats perjury before the House as equivalent to perjury before a court in civil and not in criminal matters. Mr Demicoli was not a Member of the House. In the Court ’ s view, the proceedings taken against him in the present case for an act of this sort done outside the House are to be distinguished from other types of breach of privilege proceedings which may be said to be disciplinary in nature in that they relate to the internal regulation and orderly functioning of the House. Section 11(1)(k) potentially affects the whole population since it applies whether the alleged offender is a Member of the House or not and irrespective of where in Malta the publication of the defamatory libel takes place. For the offence thereby defined the Ordinance provides for the imposition of a penal sanction and not a civil claim for damages. From this point of view, therefore, the particular breach of privilege in question is akin to a criminal offence under the Press Act 1974 (see, mutatis mutandis, the above-mentioned Weber judgment, Series A no. 177, p. 18 para. 33 in fine). 34. The third criterion is the degree of severity of the penalty that the person concerned risks incurring. The Court notes that in the present case, whilst the House imposed a fine of 250 Maltese liri on the applicant which has not yet been paid or enforced, the maximum penalty he risked was imprisonment for a period not exceeding sixty days or a fine not exceeding 500 Maltese liri or both. What was at stake was thus sufficiently important to warrant classifying the offence with which the applicant was charged as a criminal one under the Convention (see the same judgment, ibid., p. 18, para. 34). 35. In conclusion, Article 6 applied in the present case. B. Compliance with Article 6 para. 1 (art. 6-1) 36. The applicant submitted that in the proceedings before the House of Representatives he did not receive a fair hearing by an independent and impartial tribunal. The political context in which the proceedings against him were conducted "made a mockery of the whole concept of the independence and the impartiality of the judiciary". This, he claimed, was evident from statements made by Members of the House in relation to his case in the official record of the Parliamentary sittings (see paragraph 14 above). He maintained that in breach of privilege proceedings Members of Parliament sit as victims, accusers, witnesses and judges. In his case it was the privilege of the individual Members concerned that was in issue and not, as the Government suggested, that of the whole House. Even if the Government ’ s view on this point were accepted, that would mean, in his view, that "each and every Member of the House of Representatives is a judex in causa sua ". 37. The Government argued that the House of Representatives was "an independent and impartial tribunal established by law" for the purpose of hearing the disciplinary charge against Mr Demicoli. The Maltese House of Representatives was an independent authority "par excellence". The House was independent of the executive and of the parties, its Members were elected for a term of five years and its proceedings afforded the necessary guarantees. Accordingly it fulfilled all the requirements of a tribunal set out in the Ringeisen judgment of 16 July 1971 (Series A no. 13, p. 39, para. 95). The independence of the House was sufficient to exclude any legitimate doubt as to its impartiality. Moreover, the Members directly satirised by the article intervened to defend the dignity of the House and not just their own reputations. 38. The Commission took the view that the House of Representatives could not be considered to be a court and did not fulfil the requirements of the Convention as to independence or impartiality. 39. The Court, like the Commission, notes that the power of the Maltese Parliament to impose disciplinary measures and to govern its own internal affairs is not in issue. Moreover, the Court ’ s task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which the proceedings against Mr Demicoli were conducted gave rise to a violation of Article 6 para. 1 (art. 6-1). According to its case-law, "a ‘ tribunal ’ is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner ... It must also satisfy a series of further requirements - independence, in particular of the executive; impartiality; duration of its members ’ terms of office; guarantees afforded by its procedure - several of which appear in the text of Article 6 para. 1 (art. 6-1) itself" (see the Belilos judgment of 29 April 1988, Series A no. 132, p. 29, para. 64). 40. In the circumstances of the present case the House of Representatives undoubtedly exercised a judicial function in determining the applicant ’ s guilt. The central issue raised in this case is whether the requirement of impartiality was duly respected. For the purposes of Article 6 para. 1 (art. 6-1) this must be determined according to a subjective test, that is on the basis of the personal conviction or interest of a particular judge in a given case, and according to an objective test, namely ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. In this context even appearances may be of a certain importance, particularly as far as criminal proceedings are concerned (see, amongst other authorities, the Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21, paras. 46-48). 41. The two Members of the House whose behaviour in Parliament was criticised in the impugned article and who raised the breach of privilege in the House (see paragraph 11 above) participated throughout in the proceedings against the accused, including the finding of guilt and (except for one of them who had meanwhile died) the sentencing. Already for this reason, the impartiality of the adjudicating body in these proceedings would appear to be open to doubt and the applicant ’ s fears in this connection were justified (see the above-mentioned Hauschildt judgment, Series A no. 154, p. 23, para. 52). 42. Accordingly, there has been a breach of Article 6 para. 1 (art. 6-1) of the Convention on the point considered. It is therefore not necessary to go into other aspects of this provision. III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 2 (art. 6-2) 43. The applicant submitted that the resolution of 10 February 1986 and the motion of 4 March 1986 (see paragraphs 11 and 12 above) placed the burden of proving innocence on the accused and accordingly violated Article 6 para. 2 (art. 6-2) of the Convention. The Government denied that the wording of the resolution and the motion had this effect. In view of the above finding of a violation of Article 6 para. 1 (art. 6-1), the Court does not consider it necessary to examine this issue. IV. APPLICATION OF ARTICLE 50 (art. 50) 44. Article 50 (art. 50) provides: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." Mr Demicoli claimed under this provision compensation for both pecuniary and non-pecuniary damage, together with reimbursement of legal costs and expenses referable to the domestic proceedings as well as those before the Convention institutions. He further requested that the Court direct the taking of certain legal measures. A. Legal measures 45. The applicant requested the Court to bring about, with the Government ’ s concurrence, the passing of a Parliamentary resolution revoking the two resolutions by which he was found guilty and fined, the amendment of the Ordinance to repeal section 11(1)(k) and the repeal of all references to breach of privilege proceedings in the Constitution of Malta. These measures were opposed by the Government. The Court notes that the Convention does not empower it to act on this request. It recalls that it is for the State to choose the means to be used in its domestic legal system to redress the situation that has given rise to the violation of the Convention (see, mutatis mutandis, the Zanghì judgment of 19 February 1991, Series A no. 194-C, p. 48, para. 26). B. Damage 46. By way of compensation for pecuniary damage the applicant sought an indemnity for the Lm 250 (Maltese liri ) fine which, though still unpaid, remains due. Since this fine has not been paid and no measures have been taken to enforce payment, the Court sees no need to make any order. 47. The applicant also sought "a token contribution of Lm 10,000" by way of compensation for non-pecuniary damage, not only for the fear and anguish resulting from the "illegitimate trial to which he was subjected" in what he described as an intimidatory atmosphere, but also for the loss of future employment prospects in the public service because he had been found guilty by Parliament. 48. Although it cannot be excluded that the applicant did suffer some degree of distress, the Court, having regard to the circumstances of the case, is of the opinion that the finding of a violation in the present judgment constitutes in itself adequate just satisfaction under this head. C. Costs and expenses 49. Mr Demicoli sought, in addition, reimbursement of costs and expenses incurred in the proceedings in the Maltese courts and before the Convention institutions. The Court has consistently held that reimbursement may be ordered in respect of costs and expenses that (a) were actually and necessarily incurred by the injured party in order to seek, through the domestic legal system, prevention or rectification of a violation, to have the same established by the Commission and later by the Court and to obtain redress therefor, and (b) are reasonable as to quantum (see, among other authorities, the Bricmont judgment of 7 July 1989, Series A no. 158, p. 33, para. 101). 50. As regards the breach of privilege proceedings before the House of Representatives, Mr Demicoli sought Lm 600 by way of "attendance" and "extrajudicial" fees. As regards the constitutional action challenging the validity of the breach of privilege proceedings, he sought Lm 901.90 (the amount of the official taxed bill of costs) as well as a further Lm 300 by way of "extrajudicial" fees. 51. For the proceedings before the Commission, the applicant sought Lm 1,828 for travel and subsistence expenses for the appearance of himself, his lawyer and his legal procurator at its hearing, in addition to Lm 3,000 by way of "judicial and extrajudicial" fees. As to the proceedings before the Court, he sought Lm 995 by way of travel and subsistence expenses for himself and his lawyer and also Lm 1,500 by way of fees. 52. Most of the amounts claimed were contested by the Government on various grounds, notably as being excessive. The Delegate of the Commission considered that the applicant should receive a sum to cover his reasonable legal costs, but made no proposal as to quantum, leaving the matter to the Court ’ s discretion. 53. Taking its decision on an equitable basis, as required by Article 50 (art. 50), and applying the criteria laid down in its case-law, the Court considers that legal costs and travel and subsistence expenses may be assessed at Lm 5,000 for both the national and the Strasbourg proceedings. | The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the impartiality of the adjudicating body in the proceedings in question would appear to be open to doubt and the applicant’s fears in this connection had been justified. It noted in particular that the two Members of the House whose behaviour in Parliament had been criticised in the impugned article and who had raised the breach of privilege in the House had participated throughout in the proceedings against the accused, including the finding of guilt and (except for one of them who had meanwhile died) the sentencing. |
718 | Right to life and prohibition of torture and inhuman or degrading treatment | RELEVANT LEGAL FRAMEWORK CRIMINAL CODE 16. Article 9 of the Criminal Code, Chapter 9 of the Laws of Malta, concerning solitary confinement reads as follows: “(1) The punishment of solitary confinement is carried into effect by keeping the person sentenced to imprisonment, during one or more terms in the course of any such punishment, continuously shut up in the appointed place within the prison, without permitting any other person, not employed on duty nor specially authorized by the Minister responsible for the prisons, to have access to him. (2) No term of solitary confinement shall exceed ten continuous days. (3) More terms of solitary confinement may only be applied with an interval of two months between one term and another. (4) Nevertheless, solitary confinement may be applied during those intervals in case of any infringement of the prison regulations or for any other offence committed during the said intervals, provided that the terms be of short duration and that they shall not together exceed fifteen days in any one interval. (5) Where the law prescribes the punishment of solitary confinement and does not specify the particular number of terms, it shall not be lawful to inflict more than twelve terms of solitary confinement. (6) The punishment of solitary confinement is applied in the cases prescribed by law. (7) Before awarding the punishment of solitary confinement the court shall satisfy itself, if necessary by medical evidence, which may include a medical examination of the person convicted, that the person convicted is fit to undergo the said punishment. (8) Where, in the course of the execution of the punishment of solitary confinement, the medical officer of the prison certifies in writing that the prisoner is no longer fit to undergo such punishment, the execution of that punishment shall be suspended until such time as the prisoner is again certified to be medically fit to undergo such punishment.” PRISONS ACT 17. Section 8 of the Prisons Act, Chapter 260 of the Laws of Malta, provides for the establishment of the Board of Visitors of the Prisons, which as of 2015 is called the Corradino Correctional Facility Monitoring Board. In so far as relevant, as amended in 2015, it reads as follows: “(1) There shall be a Corradino Correctional Facility Monitoring Board, composed of such members as shall be appointed every two years by the President. (2) If any vacancy in the Board occurs on account of death, resignation or for any other cause, the President shall, as soon as practicable, appoint another person to fill the vacancy: Provided that the Board and the members thereof may act notwithstanding any such vacancy. (3) The members of the Board shall exercise such functions as shall be assigned to them by regulations made under article 6 of this Act. (4) The Minister responsible for the Prisons, the Chief Justice, the judges, the magistrates and the Attorney-General shall be ex officio Special Visitors of the prisons, and as such it shall be lawful for them to have at any time access to the prisons for the purpose of inspecting such prisons and any of the prisoners therein. They shall enter in the official Visitors’ Book any remarks which they may deem proper in regard to the prisons and prisoners, and the book shall be produced to the members of the Corradino Correctional Facility Monitoring Board on their next visit to the prisons. (5) The Director of Prisons shall ensure that all prisoners are made aware of the Corradino Correctional Facility Monitoring Board and its functions thereof and to make available the necessary mechanism in order that the prisoners can make their requests or complaints to the Board.” PRISONS REGULATIONS 18. In so far as relevant the Prisons Regulations, Subsidiary Legislation 260.03, as amended in 2016 and later, but not including the amendments introduced by means of Legal Notice 475 of 2021, Prisons (Amendment No. 2) Regulations, 2021, published in the Government Gazette on 17 December 2021(*), read as follows: Regulation 8(1) “(1) An unconvicted prisoner may keep, if he has them with him on his admission to prison, or have supplied to him at his expense and retain for his own use, books, newspapers, writing materials and other means of occupation, unless this is objectionable to the Director on the grounds that they are not compatible with the interest of the administration of justice or the security or good order of the prison.” Regulation 17 “(1) Every request by a prisoner to see the Director, the [the Corradino Correctional Facility Monitoring] Board or a member thereof, and any complaint made by a prisoner, shall be recorded by the prison officer to whom it is made and promptly passed on to the Director. (2) The Director shall, without undue delay, see prisoners who have asked to see him and take cognizance of any request or complaint made to him. (3) Where a prisoner has asked to see the Board, or a member thereof, the Director shall ensure that the Secretary of the Board is informed of the request within a reasonable time. (4) Prison officers in direct contact with prisoners, shall, at their request, supply prisoners with an appropriate form approved by the Director for the purpose of making requests, complaints or petitions. Prisoners may, however, submit any request, complaint or petition in any other proper written form and even verbally.” Regulation 18 “(1) If a prisoner so requests the Director may interview him without any other person being present. (2) If a prisoner requests an interview with the Board, the Secretary and any two other members thereof may interview him without the Director or any other person being present. (3) Every prisoner shall be allowed to make a request or complaint to the Director, to the Board or to the Minister, or to petition the President of Malta, or to an internationally recognized human rights body, under confidential cover. (4) Every request, complaint or petition of a prisoner shall be dealt with and replied to without undue delay.” Regulation 19 “(1) Where accommodation is shared it shall be occupied by prisoners suitable to associate with each other in those conditions. (2) The accommodation provided for prisoners, and in particular all sleeping accommodation, shall meet the requirements of health and hygiene, due regard being had to climatic conditions and especially the cubic content of air, a reasonable amount of space, lighting and ventilation. Such accommodation shall also allow the prisoner to communicate at any time with a prison officer.” Regulation 20 “In all places where prisoners are required to live or work – (a) the windows shall be such as to enable the prisoners to read or work by natural light in normal conditions and shall be so constructed that they can allow the entrance of fresh air, and shall, with due regard to security requirements, present in their size, location and construction as normal an appearance as possible; (b) artificial light shall satisfy recognised technical standards and, as regards the cells, shall be capable of being dimmed at night in such a way as to permit supervision.” Regulation 21 “Every prisoner shall be provided with a separate bed and separate bedding appropriate for warmth and health, which shall be kept in good order and changed often enough to ensure its cleanliness in accordance with the orders of the Director.” Regulation 23 “(1) Prisoners shall be required to keep their persons clean, and to this end they shall be provided with such toilet articles as are needed for health and cleanliness, which articles shall be replaced as necessary. ... (3) Each cell shall be provided with a wash hand basin with running water and with a toilet. If there is no flushing equipment each prisoner shall be allowed to have a sufficient quantity of water for keeping the toilet clean. (4) Proper toilet facilities shall also be provided in other parts of the prison. ...” Regulation 25 “(1) Prisoners sentenced to imprisonment shall be provided at the normal times with food which is suitably prepared and presented, and satisfies in quality and quantity modern standards of diet and hygiene, and which takes into account the age, sex, and health of the prisoners, the nature of their work and so far as possible, their religious or cultural requirements. (2) The Director shall regularly inspect food provided to the prisoners and shall ensure that no prisoner shall be given food which is less than or different from that which is ordinarily provided, except upon the written recommendation of the Medical Officer. (3) The provisions of this regulation shall also apply to unconvicted prisoners and prisoners sentenced to detention, provided that the Director may establish a system under which such prisoners may be supplied with reasonable amount of food at their own expense or at the expense of their family. In no case can such food be passed to other prisoners without the permission of the Director. (4) No prisoner sentenced to imprisonment shall be allowed, except as authorised by the Director or by the Medical Officer, to have any food other than that ordinarily provided. (5) In this regulation "food" includes drinking water.” Regulation 28 “(1) Prisoners not engaged in outdoor work shall be given exercise in the open air for not less than a total of one hour, each day, if weather permits: Provided that exercise consisting of physical training maybe given indoors instead of in the open air. (2) The Director may in exceptional circumstances authorize reduction of the period aforesaid. (3) The Medical Officer shall decide on the fitness of every prisoner for exercise and physical training, and may excuse a prisoner from, or modify, any such activity on medical grounds. Special arrangements shall be made for remedial physical education and therapy for those prisoners who need it.” Regulation 31 “... (7) The Medical Officer shall inform the Director if he suspects any prisoner of having suicidal intentions, and such prisoner shall be placed under special observation.” Regulation 32 “(1) The Medical Officer shall ensure the care of the physical and mental health of the prisoners and shall also ensure that medical doctors see, under proper conditions and with such frequency as is reasonably required, all sick prisoners, those who report illness or injury, and any prisoner who may require medical attention. ... (3) (a) The Medical Officer shall report to the Director whenever he considers that a prisoner’s physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment. (b) If any prisoner is found to have any infectious or contagious disease, a report thereof shall be made forthwith to the Director by the Medical Officer, under whose direction steps shall be taken to treat the condition and to prevent its transmission to others.” Regulation 33 “ ... (1) (a) Every prisoner shall, as soon as possible after admission, and prior to his release, be separately examined by a medical practitioner of the prison medical services. A record is to be entered of the state of health of the prisoner and other necessary particulars in a register kept for the purpose (...)” Regulation 34 “(1) The Medical Officer shall regularly advise the Director on: (a) the quantity, quality, preparation and serving of food and water; (b) the hygiene and cleanliness of the prison and prisoners; (c) the sanitation, heating, lighting, and ventilation of the prison; and (d) the suitability and cleanliness of the prisoners’ clothing and bedding. (2) The Medical Officer shall at least once every six months make a report to the Director on the health of the prisoners and on the general sanitation of the prison.” Regulation 37 “The medical services of the prison shall seek to detect and shall treat any physical or mental illness or defect or drug-related condition which may affect a prisoner’s well-being in prison or which may impede a prisoner’s re-settlement after release. All necessary medical, surgical and psychiatric services available without charge to the community outside prison shall also be provided to the prisoner.” Regulation 39 “(1) The Medical Officer shall ensure that the prison medical service keeps proper medical records for each prisoner, and such other records as may be necessary including the times of attendance of medical practitioners, all examinations, inspections and visits carried out, all prescriptions and orders issued, any advice given to the Director relating to any prisoner or prison officer. The stocks of medicines and medical equipment, and generally of all matters relevant to the performance of the duties pertaining to the prison medical service. (2) All records under this regulation shall be kept in the prison and shall be accessible, subject to their confidentiality, to the Minister, the Director, the Board and to any properly authorised person: Provided that as regards the medical records of prisoners the provisions of regulation 7(4) [1] shall, mutatis mutandis, apply. (...) ” Regulation 47 “An adequately stocked library containing books and periodicals of a suitable instructional and recreational range shall be provided at the prison and, subject to any directions of the Director, every prisoner shall be allowed to have library books and periodicals and to exchange them. The library shall, as far as practicable be organised in co-operation with public and community library services.” Regulation 51 “(1) Except as provided by these regulations, every letter and communication to or from a prisoner may be read or examined by the Director or a prison officer deputed by him, and the Director may stop any letter or communication if its contents are objectionable or if it is of inordinate length. (2) Every visit to a prisoner shall take place within the sight of a prison officer. (3) Visits to a prisoner may, with the consent of the Director, take place within the hearing of a prison officer. (4) No object may be handed over to a prisoner during any visit without the approval of the Director. (5) The Minister may give directions, generally or in relation to any visit or class of visits, concerning the days, times, duration and any other condition of visits to prisoners.” Regulation 52 “(1) Subject to the provisions of sub regulation (11), an unconvicted prisoner may send and receive as many letters and may receive as many visits within such limits and subject to such conditions, as the Minister may direct, either generally, or in particular cases. ... (3) The Director may allow a prisoner to send or receive an additional letter or visit where necessary for his welfare or that of his family. (4) The Director may allow a prisoner entitled to a visit to send and receive a letter instead. (5) The Director may defer the right of a prisoner to a visit until the expiration of any period of cellular confinement. (6) A prisoner shall not be entitled under this regulation to receive a visit from any person other than those as are referred to in regulation 50 except with the leave of the Minister. (7) Subject to any direction of the Minister under regulation 51(5), the duration of any visit and the number of visitors in respect of any particular visit shall be established by the Director according to the needs of security, discipline and good order. (8) Visits, other than those referred to in regulations 53 and 54,shall take place in the room or rooms designated for such purpose by the Director who may also permit visits to take place outside such rooms on special grounds and under appropriate supervision. (9) A full record shall be kept in an appropriate register of all visits to prisoners and such record shall include the date and time of the visits and particulars relating to the identity of the visitor.” Regulation 53 “(1) The legal adviser of a prisoner in any judicial proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing the said prisoner in connection with those proceedings. (2) With the permission of the Director, the legal adviser of a prisoner may interview him in connection with legal matters other than those referred to in the foregoing sub regulation. ... (4) The interviews referred to in the foregoing sub regulations shall be conducted out of hearing but in the sight of a prison officer. (5) Visits under this regulation shall take place in a room different from the room or rooms where visits referred to in regulation 52 are held, but shall also be recorded in the register of visits under sub regulation (9) of that regulation.” Regulation 54(1) “A prisoner who is a party to any legal or judicial proceedings may correspond with his legal adviser in connection with those proceedings and, unless the Director has reason to suspect that any such correspondence contains matter not relating to the proceedings, the said correspondence shall not be read or stopped under regulation 51(1).” Regulation 59(1) “Telephone calls by prisoners shall be subject to the needs of security, discipline and good order of the prison and shall be considered as a privilege in terms of regulation 13. All telephones within the Prisons shall be equipped for monitoring and recording of conversations, and the Director may authorise the intentional hearing of such conversations to safeguard members of the public or the security or safety within the prison, or to prevent the furtherance of any illegal activity.” Regulation 67 “(1) Where it appears desirable, in the interests of security or for the maintenance of good order or discipline or in his own interest, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the Director may arrange for the prisoner’s removal from association accordingly. During such periods the Director may also order the cancellation of visits, other than those referred to in regulations 53, 54 and 55. (2) A prisoner shall not be removed from association under the foregoing sub regulation for a period of more than forty-eight hours without the authority of the Minister. An authority given under this sub regulation shall be for a period not exceeding fifteen days, but may be renewed for similar periods. Such an authority shall be immediately notified to the Chairman of the Board. (3) The Director may, in his discretion, direct that the prisoner resume association with other prisoners, and shall so direct if the Medical Officer advises accordingly on medical grounds: Provided, that when such removal had been effected under the Minister’s authority in terms of the preceding sub regulation, the Minister and the Chairman of the Board shall be notified immediately of such direction.” Regulation 73 “Particulars of every case dealt with under regulations 67,68, 69 and 71 shall be forthwith recorded by the Director in a register kept for the purpose.” Regulation 78 “(1) If the Director finds a prisoner guilty of an offence against discipline he may impose one or more of the following punishments: ... (f) cellular confinement not exceeding thirty days; ...” Regulation 82 “(1) Cellular confinement in respect of offences against discipline shall be undergone in a cell which meets the standards of these regulations. (2) The Medical Officer shall monitor the condition of prisoners undergoing cellular confinement and shall advise the Director if the termination or alteration of the relative punishment is considered necessary on grounds of physical or mental health. If the Director, acting on such advice, terminates or alters the punishment of cellular confinement, he shall substitute for it an alternative punishment specified in regulation 78. (3) It shall also be the duty of the Medical Officer to monitor the condition of any prisoner sentenced to solitary confinement by any court.” Regulation 90 “... (3) Saving his powers to give orders, whether verbally or in writing, as he may deem fit for the proper running of the daily administration of the prison, the Director may also make orders in writing relating to any aspect of the administration of the prison and the maintenance of discipline, security and good order therein, as well as to any other matter forming part of his duties as set out in these regulations: Provided that nothing in such orders shall be contrary to the provisions of the Act or of these regulations. (4) The Director shall take strict care to ensure that these regulations and any direction or order given thereunder, as well as any order relating to the prison, are complied with and enforced. (...)” Regulation 107* “It shall also be the duty of the Board to hear and decide upon, as soon as practicable, any request or complaint made to it by a prisoner including on matters relating to the conditions of their detention directly to the Secretary or to any of its members during the course of a visit or inspection.” Regulation 108* “(1) The decisions of the Board shall be taken by a majority of the members present and voting. In the case of an equality of votes the Chairperson shall have a casting vote in addition to his original vote. (2) The decisions of the Board shall not be binding upon the Director but it shall be the duty of the Director to take serious cognizance of the recommendations of the Board following a decision taken as provided in sub regulation (1) and to enter into a dialogue with the Board on possible implementation measures. Subject to the provisions of sub regulation (3), where the Director, or any other prison officer acting on his behalf, is of the opinion that the recommendations of the Board cannot be implemented for reasons which are in the best interests of the prison administration, an explanation in writing of these reasons shall, within one month of the date of receipt of the Board’s recommendations, be forwarded to the Chairperson of the Board and copied to the Minister, or to a person delegated by him. The Minister, or the person delegated by him, may confirm or vary the decision of the Director. (3) Where the recommendation of the Board entails, in the opinion of the Director, a security issue requiring strict confidentiality the Director, within the period of one month mentioned in sub regulation (2), shall make a statement to this effect to the Chairperson of the Board and shall concurrently submit a personal report directly to the Minister, or to the person delegated by him, giving his own comments on the recommendation, together with his opinion as to whether or not such recommendation should be accepted. The Minister’s decision, or that of the person delegated by him, shall be final and conclusive. (4) It shall also be lawful for the Board to decide on complaints and requests made by the prisoners relating to the conditions of their detention within a period of two months of the date of receipt of the request or complaint and after consulting the Director in relation to the said requests and complaints.” Regulation 114 “The Board shall inquire into any report made to it, or any information otherwise coming to its knowledge, that a prisoner’s health, mental or physical, has been or is likely to be injuriously affected by any conditions of his imprisonment.” RELEVANT INTERNATIONAL MATERIALS [2] COVID-19 19. The Council of Europe issued a number of statements in connection with the Covid-19 pandemic and prisons, as follows: 20. The Council of Europe Secretary General’s Toolkit for member States “Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis” (Doc. SG/Inf(2020)11 of 7 April 2020) - https://rm.coe.int/sg-inf-2020-11-respecting-democracy-rule-of-law-and-human-rights-in-th/16809e1f40 21. The Statement of the Council of Europe Commissioner for Human Rights made on 6 April 2020: “COVID-19 pandemic: urgent steps are needed to protect the rights of prisoners in Europe” - https://www.coe.int/en/web/commissioner/-/covid-19-pandemic-urgent-steps-are-needed-to-protect-the-rights-of-prisoners-in-europe 22. Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19) pandemic issued on 20 March 2020 - European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) Council of Europe - https://rm.coe.int/16809cfa4b and its follow up of July 2020 https://rm.coe.int/16809ef566 23. Covid-19 Related statement by the members of the Council for penological co-operation working group (PC-CP WG) CPT/Inf(2020)13 - https://rm.coe.int/pc-cp-wg-covid-19-statement-17-04-2020/16809e2e55 and its follow up of October 2020 https://rm.coe.int/pc-cp-2020-10-e-rev-follow-up-to-pc-cp-wg-statement-covid-19/16809ff484 24. On 15 March 2020 the World Health Organisation (‘WHO’) issued interim guidance concerning the Pandemic entitled “Preparedness, prevention and control of COVID-19 in prisons and other places of detention” - https://apps.who.int/iris/bitstream/handle/10665/336525/WHO-EURO-2020-1405-41155-55954-eng.pdf?sequence=1&isAllowed=y GENERAL PRISON STANDARDS 25. The United Nations Standard Minimum Rules for the Treatment of Prisoners - https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf 26. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules - Adopted by the Committee of Ministers on 11 January 2006, at the 952nd meeting of the Ministers’ Deputies and revised and amended by the Committee of Ministers on 1 July 2020 at the 1380th meeting of the Ministers’ Deputies - https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d8d25 27. Combatting ill-treatment in prison, Council of Europe handbook - https://rm.coe.int/combating-ill-treatment-in-prison-2-web-en/16806ab9a7 28. Good governance for prison health in the 21st century. A policy brief on the organization of prison health (2013), compiled by the United Nations Office for Drugs and Crime and the WHO, regional office for Europe - https://www.euro.who.int/__data/assets/pdf_file/0017/231506/Good-governance-for-prison-health-in-the-21st-century.pdf 29. Office of the High Commissioner for Human Rights, Human rights in the administration of justice, A/HRC/42/20, 30 July 2019 - https://www.ohchr.org/Documents/Issues/RuleOfLaw/Violence/A_HRC_42_20_AUV_EN.pdf OTHER MATTERSSolitary confinement Solitary confinement Solitary confinement 30. Recommendation Rec(2006)2-rev of the Committee of Ministers to member States on the European Prison Rules, adopted by the Committee of Ministers on 11 January 2006, at the 952nd meeting of the Ministers’ Deputies and revised and amended by the Committee of Ministers on 1 July 2020 at the 1380th meeting of the Ministers’ Deputies (link at paragraph 26 above), in so far as relevant at the time of the present case, reads as follows: “53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority. 53.6 Such measures shall be applied to individuals and not to groups of prisoners. 53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70. ... 60.6. a Solitary confinement, that is the confinement of a prisoner for more than 22 hours a day without meaningful human contact, shall never be imposed on children, pregnant women, breastfeeding mothers or parents with infants in prison. 60.6. b The decision on solitary confinement shall take into account the current state of health of the prisoner concerned. Solitary confinement shall not be imposed on prisoners with mental or physical disabilities when their condition would be exacerbated by it. Where solitary confinement has been imposed, its execution shall be terminated or suspended if the prisoner’s mental or physical condition has deteriorated. 60.6. c Solitary confinement shall not be imposed as a disciplinary punishment, other than in exceptional cases and then for a specified period, which shall be as short as possible and shall never amount to torture or inhuman or degrading treatment or punishment. 60.6. d The maximum period for which solitary confinement may be imposed shall be set in national law. 60.6. e Where a punishment of solitary confinement is imposed for a new disciplinary offence on a prisoner who has already spent the maximum period in solitary confinement, such a punishment shall not be implemented without first allowing the prisoner to recover from the adverse effects of the previous period of solitary confinement. 60.6. f Prisoners who are in solitary confinement shall be visited daily, including by the director of the prison or by a member of staff acting on behalf of the director of the prison.” 31. In so far as relevant, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 21 st General Report on the CPT’s activities, 2011, deals with solitary confinement at pages 39-50, and can be accessed - https://rm.coe.int/1680696a88 32. See below the findings of the CPT in relation to solitary confinement in Malta, at point 90 of the report. CPT report Malta (2016) 33. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 25 October 2016, in so far as relied on by the applicant, reads as follows: “56. The delegation noted that some renovations had been undertaken in CCF (for example, of Divisions IV and VII). Further, two of the previously most problematic divisions (Divisions VI and XV) had been closed down. Nevertheless, the remaining divisions provided generally poor living conditions for the inmates, and this was particularly the case in Divisions II, III and XIII. While most cells were sufficient for single occupancy (measuring some 9m²), the dormitory rooms at CCF (for example in Division XIII) were cramped, with nine inmates held in approximately 30m² (i.e. significantly less than the minimum standard of 4m² of living space per prisoner in a multiple-occupancy cell recommended by the CPT).19 Many of the cells were excessively hot (over 30 degrees Celsius at the time of the visit) with poorly functioning ventilation. Further, some of the cells were in a bad state of repair, with mould or ingrained dirt evident on the walls and around the windows. Many of the washrooms were dirty, some showers lacked shower-heads and there were problems with drainage, which reportedly caused water to leak into the nearby cells (especially on the ground floor of Division XIII). The in-cell toilets were unscreened, had mal-functioning flushes, and the water was cut off intermittently. This was particularly problematic given an outbreak of diarrhoea among the prisoners during the delegation’s visit (see paragraph 76). Prisoners did not believe that in-cell water from the sinks was safe to drink and the staff concurred with them. Many prisoners, especially those inmates who only lived off the basic €27 monthly allowance, complained to the delegation about the lack of ready access to safe drinking water and the need to buy bottled water. The divisions had individual or shared exercise yards, which consisted merely of a stretch of bare tarmac. They were not equipped with any means of rest (let alone any sports or recreational equipment) or any shelter to protect prisoners from sun or rain. The yards were extremely hot, and at the time of the visit, the delegation noted that not a single prisoner made use of them during the day. ... 76. In the course of the delegation’s visit to CCF, there was an outbreak of diarrhoea. On 4 September 2015, 15 prisoners complained of diarrhoea at CCF, followed by another 20 inmates the following day. Various stool samples from inmates were also sent by CCF to the hospital laboratory on the evening of 4 September. Health Inspectors attended the prison on the morning of 5 September and took samples of water and food from the kitchen. Initially, prison management stated that all inmates affected had been in single cell accommodation and remained there; however, the delegation found nine of the affected prisoners were sharing cells with at least one other person and one inmate was in a large dormitory. The prison management explained that this was their first experience of a new phenomenon and the delegation observed that they were unsure how to contain and deal with the outbreak. On 9 September, some five days after the outbreak had commenced, it was confirmed that the cause of the outbreak was salmonella, which was presumed to have come from tuna in the kitchen. In total, 41 prisoners had been affected by this outbreak. ... 77. The CPT knows that the risk of disease transmission is enhanced in a closed institution (such as a prison), in particular when general hygiene and environmental conditions are poor. Consequently, prison health-care services should adopt a proactive approach, with a view to minimising the risk of the spread of certain infections. The CPT recommends that the Maltese authorities put in place robust policies to deal immediately with health (and other) crises that may take place within the prison, including adopting a proactive approach, with a view to minimising the risk of the spread of certain infections and ensure the speedier analysis of test results. To this end, regular health checks of the food quality, storage procedures and hygiene standards and procedures in the CCF kitchen should be undertaken. ... 90. As regards solitary and cellular confinement for discipline purposes, section 68 of the Prison Regulations stipulates that ‘the Director may order a violent prisoner to be confined temporarily in an appropriate cell [and] if the Director keeps such order in force for more than forty-eight hours he shall consult the Medical Officer and shall inform the Chairman of the Board’. In CCF, solitary confinement on account of violence was resorted to in one of three adjoining cells, built in 2000 and designated as single rooms used for medical and disciplinary isolation purposes, situated next to the Infirmary. Each of the three cells had a bed plinth with a mattress and a toilet annexe. The cells had access to natural light and adequate ventilation and each had a call-bell. From examination of the relevant registers and interviews with prisoners and staff, it was clear that these cells were only occasionally used. Of the nine placements from January 2015 until the date of the CPT delegation’s visit, seven had been for medical observation reasons and two for disciplinary purposes. The disciplinary cases had both involved the same person and each had lasted less than 48 hours. The seven medical cases had lasted seven, four, seven, five, two, one and three days respectively. As regards the sanction of cellular confinement for up to a period of 30 days, the CPT understands that this measure means that the inmate is kept in his or her cell. Therefore, in most cases in CCF (given that most of the prisoners have single-cell accommodation) this measure means being placed in effective solitary confinement for 30 days. The CPT recalls that solitary confinement as a disciplinary sanction should not last for a period of more than 14 days consecutively. Thus, it recommends that the Prison Regulations be amended to reflect this.” THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 34. The applicant complained about his conditions of detention which he considered were in breach of Article 3 of the Convention, which reads as follows. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” AdmissibilityNon-exhaustion of domestic remedies Non-exhaustion of domestic remedies Non-exhaustion of domestic remedies (a) The parties’ submissions (i) The Government 35. The Government submitted that the applicant had failed to exhaust domestic remedies as he had failed to raise these complaints before the constitutional jurisdictions. While the Court had previously found that such proceedings were too lengthy for the purposes of complaints under Article 3 of the Convention, in relation to conditions of detention, those considerations were no longer valid. This was shown by the speed within which the applicant’s complaints under Articles 5 and 6 of the Convention had been determined, namely less than seven months over two levels of jurisdiction, during a pandemic. It followed that the domestic courts adequately responded to cases requiring expeditious and urgent conclusions. The Government further relied on the cases of Alfred Degiorgio v. the Attorney General (no. 29/2019), instituted on 26 February 2019, decided at first instance on 28 February 2019 and, on appeal, by the Constitutional Court on 12 July 2019; Victor Buttigieg (Joseph Victor) v. the Attorney General (no. 97/2018) instituted on 28 September 2018, and decided at first instance on 11 March 2019 and, on appeal, by the Constitutional Court on 12 July 2019; Onor. Simon Busuttil v. the Attorney General (no. 86/2017) instituted on 19 October 2017, decided at first instance on 12 July 2018 and, on appeal, by the Constitutional Court on 29 October 2019, which concerned other Convention complaints. The Government explained that cases concerning ongoing ill ‑ treatment, in detention, were extremely rare and it was therefore difficult to provide examples of cases under Article 3, with similar circumstances as those in the instant case, to show the speed with which they were decided. Moreover, they noted that this avenue of redress was still open to the applicant. 36. They further noted that raising such complaints in the context of his bail applications had not been an appropriate course of action as such courts were not intended to determine the Convention compatibility of the applicant’s conditions of detention, but rather whether he qualified for bail. 37. The Government further submitted (in the context of the merits of the complaint) that, despite his allegations (see paragraph 40 below), the applicant had not filed complaints with the Corradino Correctional Facility Monitoring Board which was specifically tasked to hear complaints concerning detention conditions. Furthermore, the Government questioned whether the matters raised by the applicant in respect of his confidential communication with lawyers could be relevant for a claim under Article 3 since such issues were normally raised in a complaint under Article 6 or Article 8, or exceptionally Article 34. They highlighted in particular that according to the Court’s case-law, national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought to Strasbourg, the European Court should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries. (ii) The applicant 38. The applicant submitted that he had not lodged constitutional proceedings in respect of these complaints, because unlike the ones under Article 5 which in his view would be dealt with more swiftly (as was in fact the case), he considered that they would take too long, as shown by other domestic examples. Notably, a constitutional application filed by an activist in September 2020, challenging the CCF authorities’ prohibition of his access to the prison premises (for the purpose of assessing the veracity of claims of egregious prison conditions by prison inmates), was still being heard by the Constitutional Court on 25 June 2021, i.e. nine months later. 39. He further noted that in his applications before the Criminal Court of 1 April 2020 and 16 April 2020 (see Fenech (dec.), cited above, §§ 15 ‑ 16 and 29), which were dismissed, he had explicitly raised the issues of the risk to his life and health in detention due to Covid-19, and the alleged violation of Article 3 of the ECHR owing to the prison conditions, respectively. After that, following a further request concerning access to his lawyer, by a decree of 24 November 2020 (not submitted to the Court) (see paragraph 9 above), the Court of Magistrates declined to intervene, claiming that it had no jurisdiction on issues concerning the management of the prison or the implementation of the relevant legal provisions regulating the prison facility. In consequence the applicant had no effective judicial remedy to pursue. 40. According to the applicant, during his solitary confinement from 30 November 2019 till 3 January 2020, he complained to the prison authorities every day, requesting them to remove him from such isolation, but his complaints were always rejected. The applicant further submitted that he had approached the prison director for the rectification of his poor prison conditions several times – approximately fifteen times during informal meetings, as well as three formal requests – and had been reassured each time that his conditions would change. However, his conditions never materially changed. Thus, the prison’s internal complaints mechanism did not exist in practice. Lastly, the applicant had also complained, to no avail, about the lack of confidentiality in communication with his lawyers, both with the detention authorities and the Court of Magistrates (see paragraph 9 above). (b) The Court’s assessment 41. The Court refers to the general principles stemming from its case ‑ law and the assessment of the constitutional redress proceedings it made in Story and Others v. Malta (nos. 56854/13, 57005/13 and 57043/13, §§ 72-76 and 82-86, 29 October 2015) and reiterated in, for example, Yanez Pinon and Others v. Malta (nos. 71645/13 and 2 others, § 76, 19 December 2017) and Abdilla v. Malta (no. 36199/15, § 24, 17 July 2018), finding that detainees in situations similar to that of the applicant in the present case were not required to have recourse to constitutional redress proceedings, and in the latter case a consequent violation of Article 13 taken in conjunction with Article 3 (§ 72). The Court further refers to its more recent findings confirming those considerations in Feilazoo v. Malta (no. 6865/19, § 59, 11 March 2021). 42. The Court notes that the cases relied on by the Government, including that of the applicant, were decided by the constitutional jurisdictions in periods ranging between four and a half months to two years. Such periods cannot be considered to conform to a timely determination of complaints of inhuman conditions of detention and to put an end to the treatment complained of rapidly (compare Torreggiani and Others v. Italy, nos. 43517/09 and 6 others, § 97, 8 January 2013, and contrast, Domján v. Hungary (dec.), no. 5433/17, § 21, 14 November 2017, and Antanasov and Apostolov v. Bulgaria (dec.), nos. 65540/16 and 22368/17, § 52, 27 June 2017, concerning periods of between fourteen and seventeen days). The Court thus finds no reason to alter the conclusions already reached in the above ‑ cited cases against Malta. Thus, while the Court cannot rule out the possibility that constitutional redress proceedings dealt with speedily may in a future case be considered an effective remedy for the purposes of complaints of ongoing conditions of detention under Article 3, current domestic case-law does not allow the Court to find that the applicant was required to have recourse to such a remedy concerning the crux of his complaints (see paragraph 45 below). 43. In so far as the parties referred to the Corradino Correctional Facility Monitoring Board (also known as the Board of Visitors), the Court notes that the Government have not raised this in their exhaustion objection, nor – at any stage of their submissions – have they claimed that this was a remedy which the applicant should have exhausted before bringing proceedings before the Court. In fact, the Court has already had the opportunity to examine this procedure and found that it fell short of Article 13 requirements (see Story and Others, cited above, § 78). Nothing has been brought to the Court’s attention to dispel the Court’s concerns set out at the time, which prima facie were still relevant in 2020 when the applicant raised his complaints before the Court, despite slight changes to the law in 2016. The Court further observes that while the regulations and procedure pertaining to the Board were again recently amended, via Legal Notice 475 of 2021 – Prisons (Amendment No. 2) Regulations, 2021, Government Gazette of Malta No. 20,752 – 17.12.2021, the parties have not brought this to the Court’s attention, and thus they fall outside of the scope of the Court’s examination. 44. Indeed the Court notes that in Story and Others, cited above, the Court had solicited the Government to introduce a proper administrative or judicial remedy capable of ensuring the timely determination of such complaints, and where necessary, to prevent the continuation of the situation (ibid., § 85). More than six years later the situation remained unchanged (see also Abdilla, cited above, § 71). It follows that the Government’s objection of non ‑ exhaustion of domestic remedies must be dismissed in relation to the main complaint under Article 3. 45. However, other considerations apply as regards the applicant’s complaints, which he raised under Article 3, concerning the use of surveillance cameras in his cell or during visits with his legal counsel and the interception of telephone calls or documents brought to the prison by his legal counsel, as expounded in his observations. 46. The Court observes that it has held that placing a person under permanent video surveillance whilst in detention – which already entails a considerable limitation on a person’s privacy – has to be regarded as a serious interference with the individual’s right to respect for his or her privacy, as an element of the notion of “private life”, and thus brings Article 8 of the Convention into play (see Van der Graaf v. the Netherlands (dec.), no. 8704/03, 1 June 2004, and Vasilică Mocanu v. Romania, no. 43545/13, § 36, 6 December 2016). Similarly, the Court has held that, while the surveillance of communication in the visitation area in prison may legitimately be done for security reasons, a systemic surveillance and recording of communication for other reasons represents an interference with the right to respect for private life and correspondence under Article 8 of the Convention. In this context, Court has placed particular emphasis on the requirement of lawfulness, including clarity and foreseeability of the relevant law (see Wisse v. France, no. 71611/01, §§ 29 ‑ 34, 20 December 2005, and Doerga v. the Netherlands, no. 50210/99, §§ 44-54, 27 April 2004, concerning the tapping, recording and retention of telephone conversations). Such measures require an adequate framework regulating their use and guaranteeing safeguards against abuse by the State (see, for example, Gorlov and Others v. Russia, nos. 27057/06 and 2 others, §§ 97-100, 2 July 2019). 47. In this connection the Court notes that the applicant’s complaints in this respect, as elaborated in his observations, constitute autonomous complaints under Article 8 of the Convention, and thus should have been raised before the constitutional jurisdictions which are effective remedies for the purposes of that provision (see, for example, Story and Others, cited above, § 132, and Knoess v. Malta, (Committee dec.), no. 69720/11, §§ 75 ‑ 76, 9 December 2014). Thus, the Court considers that in the absence of any issues arising under Article 34 (see, a contrario, Peňaranda Soto v. Malta, no. 16680/14, §§ 99-102, 19 December 2017, and Feilazoo, cited above, § 124), in the circumstances of the present case, it would be contrary to the principle of subsidiarity to assess the case under Article 3, as stands before it, that is, including the above-mentioned issues falling more appropriately, if not exclusively, under Article 8. 48. Without prejudice to the applicant’s possibility of bringing the latter complaints again before the Court at a later stage – after having exhausted domestic remedies in that respect (see, for example, Roche v. Malta (Committee dec.), nos. 42825/17 and 66857/17, § 102, 12 June 2018, and, in practice, Cutajar v. Malta (Committee dec.), no. 55775/13, 23 June 2015) –the Court considers that at this point in time this part of the complaint under Article 3 must be declared inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies, and thus cannot form part of the scope of the applicant’s complaint under Article 3. Conclusion 49. The Court notes that the complaint under Article 3, within the scope delimited above, is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe period from 30 November 2019 to 3 January 2020 The period from 30 November 2019 to 3 January 2020 The period from 30 November 2019 to 3 January 2020 (a) The parties’ submissions (i) The applicant 50. The applicant’s submissions at the time when he lodged his application are set out in paragraph 12 above. In his later observations he admitted that the cell had a window but explained that only one small part of the three-part window could be opened, which did not allow adequate ventilation, and the cell lacked temperature control. The clothes provided did not protect from the cold and the harsh artificial lighting switched on all through the night was oppressive and prevented any semblance of peace or relaxation. Challenging the Government’s submissions and the affidavit by the prison director, the applicant reiterated that he had never been allowed to go outside for sunlight or fresh air. During his one-hour break, he was taken to a room adjacent to the solitary confinement chamber, and was expected to bathe, clean the cell, exercise, and call his family. Moreover, the cell did not have any running water or toilet paper, and the applicant had no access to any basic necessities (water, food, cigarettes) between the hours of 10 p.m.- 6 a.m. and he had been forced to tolerate the foul smell and lack of hygiene as a result of the non-flush toilet. Admitting that this could be flushed from the outside, he claimed that such service was not available during nighttime. Thus, if he used the toilet during these hours, he had no means to flush but had to endure these conditions until 6 am. To add to the humiliation, a CCTV camera pointed directly on the toilet with no shielding or screening to protect the applicant’s privacy or dignity. The applicant insisted that he had not been allowed to speak to his wife or family at all for the first fourteen days, and while he did visit the Chaplain once every week, this had not constituted sufficient human or personal contact. 51. The applicant relied on the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( 21 st General Report on the CPT’s activities, 2011), the United Nations General Assembly ( United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), A/RES/70/175, Rule 45) and the Council of Europe’s European Prison Rules (See Relevant International Materials above), as well as the Court’s case-law, all setting out standards relating to solitary confinement. 52. He noted that although in Malta, solitary confinement could be imposed pursuant to a criminal conviction under Article 9 of the Criminal Code (see paragraph 16 above) or else as a disciplinary sanction under Prison Regulation (hereinafter ‘Regulation’) 82 (see paragraph 18 above) (both of which didn’t apply in his case), there was no law regulating the solitary confinement applied to him as a purportedly protective measure. Moreover, whilst according to the Criminal Code solitary confinement “shall not together exceed fifteen days in any one interval”, the Prisons Regulations contradictorily allowed solitary confinement on disciplinary grounds for a period of thirty days. Despite recommendations by the CPT that the Prisons Regulations be amended such that the maximum period of solitary confinement would be fourteen days (see paragraph 33 in fine above), no such changes ensued. 53. The applicant considered that the prison authorities had unfettered and unregulated “discretion” and the manner in which it had been exercised in his case had been retributive, abusive, and dangerous. He believed he was being punished due to the nature of the charges against him, or for having tested positive for cocaine. Moreover, the decision on his solitary confinement had been taken by the prison director without, at the time, providing any written reasoning or justification for this extreme course of action. The applicant had merely orally and briefly been informed of this, without being provided with detailed reasons, any adequate support, or any avenue for complaint or appeal. 54. The Government’s attempts to substantiate their claim (that it had been a protective measure), were based on ‘a single entry by a medical officer in the bottom corner of a report dated 30 November 2019’, which in the applicant’s view appeared to have been appended to the medical report at a later date, to provide retroactive justification for the abusive treatment. The report, inter alia, had noted the good health and calm nature of the applicant, marked ‘NIL’ against the question of ‘Withdrawal Symptoms’, and had not noted any other danger to his health or psychiatric issues, nor found any requirement for Methadone or any detox, and the applicant’s last cocaine use had been a full (sic.) week before the medical assessment. Then, inexplicably, the report had concluded that the applicant was showing an “idea of self ‑ harm” and “suicidal intention” and needed to be placed in a single room. Strikingly, the medical officer did not check the boxes for ‘Psychiatrist’ and ‘Psychological’ review as being necessary on the very same page. Indeed, the applicant had only been checked by a psychologist once at the beginning of his detention, and he had not been placed on regular supervision by a medical officer at any point during the thirty-five days, nor had he been offered any rehabilitation programme. Further, the medical report did not detail what the risks had been, why the prison authorities concluded that solitary confinement, without proper clothing or proper bedding, would have provided any required support or reduced the danger and the applicant had never been notified of his purported medical risk. Equally, the prison director’s decision to move the applicant from solitary confinement to a mixed dormitory had not been based on medical evaluation or risk – as none had been carried out. Nor had any written decision been communicated to the applicant or his lawyers regarding his change in detention conditions. 55. The applicant submitted that the Government’s claim that the applicant had also been kept in isolation to reduce the risk of hindering the investigation had to be dismissed as untruthful. Indeed, no such risk assessment had been undertaken neither at the time of incarceration nor at the time of his move into a mixed dormitory. Instead, the applicant’s treatment had been consistent with the CCF’s brutal policy of dealing with those who may have drug addiction problems. Relying on various press articles, the applicant submitted that – at date of submissions, July 2021 – twelve prisoners had died whilst serving prison sentences over the last three years, with four of them being supposed suicide cases, while six were of cases where the detainees had been found “unconscious” or died under mysterious circumstances in their cell. One example, which fuelled questions about the system used by the prison in dealing with drug addicts and with people contemplating suicide was that of a young woman who died following a suicide attempt after having been denied a drug rehabilitation programme. The applicant referred to the self-proclaimed attitude of the prison director – a former army officer known for his military-style leadership – whose methods had been questioned and several had asked for his resignation. In January 2021, it was revealed in public that a notice hung on the walls of the prison, signed by the prison director which read: “The inmate does not fear the police, the judge or the jury. Therefore, it is our job to teach fear. Welcome to prison!”. The notice had since been taken down, however, the prison authorities’ continuous attempt to conceal the real circumstances of the prison conditions had also been noted by members of the press. (ii) The Government 56. The Government submitted that while it was true that during these thirty-four days the applicant was kept separately in a single room, his detention did not amount to solitary confinement as defined in the European Prison Rules of 2020 (see paragraph 30 above), or the Maltese Criminal Code. During such time, the applicant had had regular (unlimited) meetings and calls with his legal counsel for long stretches of time as well as regular contact with the prison authorities, including the Chaplain, and contact with his family. Furthermore, the prison division in which the single rooms had been situated was designed in such a way that the inmates were able to speak with one another, albeit from behind their cell door. The Government noted that the Court had previously held that the separation of an inmate from the rest of the prison population ‘for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment.’ In this case, the applicant had not been subject to complete sensory deprivation nor total isolation. 57. The applicant had been placed in a single room, upon the decision of the prison director, upon medical advice, for security and protective reasons, as, following his medical examinations on entry, it transpired that he was positive for cocaine and that he had a history of drug abuse (heroin and marijuana). The Government noted that that his initial drug result, together with the fact that he had been accustomed to a lavish lifestyle, made him a risk profile. In his affidavit the prison director noted that CCF was ‘Drug Free’ and explained that it was the facility’s policy for everyone testing positive for drug use not to be allowed to mix with other inmates until they tested negative; He explained that this was the applicant’s case, where he had remained in the cell at issue until 3 January 2020, date when the medical staff declared that, according to regular testing, the applicant was no longer positive for cocaine; Having determined that he was mentally stable, arrangements were put in place for his transfer to another division. 58. According to a report of 30 November 2019, submitted to the Court, the medical doctor had suggested that the applicant be kept under constant watch and that he be given “non-tearable clothing” and a “Luna blanket”. In so far as the applicant shed doubt on the authenticity of those findings, the Government noted that the notes had been clearly written by the same person with the same handwriting and the same pen on the same day, thus the applicant’s allegations in this respect were false and unsubstantiated. The Government explained that the single room was designed to reduce the risk of self-harm and that the applicant had been subject to continuous watch, via CCTV, for the same purpose – contrary to his allegation that he had not been monitored. It was for the same reasons that the applicant had been provided only with shorts and a T-shirt at the time, and that the single room had not contained a proper bed frame. He had, however, been provided with two blankets and could have requested more. 59. The Government also considered that placement in a single room limited the risk of someone communicating with the applicant and attempting to hinder the important investigations being carried out at the time into the assassination. According to the Government all decisions concerning placements of inmates were taken following a thorough risk assessment to ensure that the prison remained as calm and as safe an environment as possible and that any tensions between inmates were avoided. 60. The Government explained that the room had been equipped with a Turkish-style squat toilet and while no flushing had been available (to avoid ligature points and prevent from self-harm), the applicant could, at any time during the night or day (contrary to that alleged by the applicant), ask the prison guards to flush the toilet from outside the cell. It had also had a large window which could be freely opened by the applicant for fresh air and ventilation. As regards the continuous lighting complained of by the applicant, while it was true that there was no such control from inside the cell, again the guards could see to this. The reason for this design was, once again, to avoid ligature points to the greatest extent possible. The applicant had had sixty minutes of out-of-cell activity during which he had been expected to clean his cell, take a shower and make a phone call (other than to his legal counsel – to whom phone access was unlimited) but he had not been required to eat within that same hour. While cigarettes had not been allowed during the night, a cigarette could be given to the applicant every hour throughout the rest of the day. 61. Overall, the Government submitted that the applicant’s submissions had been littered with inaccuracies, contradictions, and outright fabrications. On occasions he had changed his submissions only once the Government had provided proof of his false allegations, as for example, in relation to the claim that the cell had only artificial lighting, which then had been turned around to say that the window did not provide adequate ventilation. (b) The Court’s assessment (i) General principles 62. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. In assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Enea v. Italy [GC], no. 74912/01, § 55, ECHR 2009; Ramirez Sanchez v. France [GC], no. 59450/00, §§ 117-119, ECHR 2006 ‑ IX, and the case ‑ law cited therein). 63. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (ibid., § 118). 64. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured. The measures taken must also be necessary to attain the legitimate aim pursued. Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (ibid., § 119, and the case ‑ law cited therein). 65. The Court reiterates that removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or degrading punishment and solitary confinement is not in itself in breach of Article 3. In assessing whether solitary confinement falls within the ambit of Article 3, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Rohde v. Denmark, no. 69332/01, § 93, 21 July 2005, and Rzakhanov v. Azerbaijan, no. 4242/07, § 64, 4 July 2013). On the other hand, complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason (see Ramirez Sanchez, cited above, § 120). Where a period is particularly lengthy, a rigorous examination is called for by the Court in order to determine whether it was justified, whether the measures taken were necessary and proportionate compared to the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant’s physical and mental condition was compatible with his continued solitary confinement (ibid., § 136). 66. In order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner’s welfare and the proportionality of the measure. First, solitary confinement measures should be ordered only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the European Prison Rules. Second, the decision imposing solitary confinement must be based on genuine grounds both ab initio as well as when its duration is extended. Third, the authorities’ decisions should make it possible to establish that they have carried out an assessment of the situation that takes into account the prisoner’s circumstances, situation and behaviour and must provide substantive reasons in their support. The statement of reasons should be increasingly detailed and compelling as time goes by. Finally, a system of regular monitoring of the prisoner’s physical and mental condition should also be put in place in order to ensure that the solitary confinement measures remain appropriate in the circumstances (ibid., § 139, and Onoufriou v. Cyprus, no. 24407/04, §§ 119 ‑ 121, 7 January 2010). Such safeguards are relevant even in cases entailing only relative isolation (see, for example, Rzakhanov, cited above, § 73, and A.T. v. Estonia (no. 2), no. 70465/14, § 73, 13 November 2018). (ii) Application of the principles to the present case 67. The Court notes that the situation in the present case was not one of solitary confinement imposed as a sanction resulting from a disciplinary measure, or a conviction – the only two confinement regimes provided in domestic law (see paragraphs 18 and 16 above). Nor has the Government claimed that the situation was one of removal from association falling under Regulation 67 (see paragraph 18 above), although this Regulation could have been applicable to the applicant’s situation. 68. The Government submitted that the decision to keep the applicant in a single cell had been taken by the prison director, upon medical advice, for, inter alia, security and protective reasons. The Court finds no reason to doubt the veracity of the medical report of 30 November 2019 submitted to the Court, and the justification it provides. Indeed, the relevant notes concerning the risk ( inter alia self-harm) are set out in the middle of the page and the suggested action is set out at the end of the page, covering therefore the entirety of the allotted page and the notes are set out in the same handwriting and format as the rest of the report. Further, the urine test results also dated 30 November 2019 (also submitted to the Court) finding the applicant positive for cocaine are counter-signed by the applicant. The Court thus considers that the measure to keep the applicant separately, in a single cell, was for medical reasons and protective purposes in line with the CCF’s policy that everyone testing positive for drug use was not allowed to mix with other inmates until they test negative, coupled with the need to ensure, inter alia, the applicant’s safety. Admittedly it is unclear to the Court whether anyone testing positive for drugs would automatically be considered to be at risk of inter alia self-harm, or whether such conclusions are those resulting from the applicant’s specific situation. In the present case the Government relied on both grounds, supported by the medical report. That having been established the Court need not consider whether there were other plausible reasons for keeping the applicant separately in a single cell. 69. The Court considers that it is regrettable that the Government did not indicate a legal basis for this measure and that written guidelines for the above-mentioned policy have not been submitted. While there can be merit in opting to separate and monitor new arrivals who test positive for drugs, the Court considers that this procedure, together with relevant safeguards, should be expressly set out in the law with relevant detail. This is even more so where this procedure seems to overlap with the necessity of keeping detainees separately for fear that they might harm themselves (as appears to have been the situation in the instant case). While some leeway can be allowed for a director to take certain urgent and imperative decisions for the well-being of prison inmates, the discretion to apply such measures cannot be unfettered thus leaving room for arbitrariness. 70. In the present case the Court notes that the decision was based on a prior and complete medical assessment (physical and psychological) and on the medical recommendations listed in that assessment, and that the applicant – who did not deny his history of drug consumption – was being monitored thereafter via the use of CCTV, in line with the indications of the medical report which had indicated that the applicant should be under constant watch. 71. Nevertheless, the Court takes issue with the fact that the decision and the details pertaining to it were not made known to the applicant in writing at the time, enabling him to challenge it (see, mutatis mutandis, Peňaranda Soto, cited above, § 76), particularly had it been prolonged (contrast, A.T. v. Estonia, cited above, § 85). In this respect, the Court observes that the applicant admitted to having been informed of the measure orally (see paragraph 53 above). Moreover, the applicant did not state that he was unaware of the existence of this policy, nor did he question the necessity of the policy in itself, or the fact that he tested positive for the drug cocaine, and, indeed, countersigned this finding. 72. Quite apart from the above concerns, the Court notes that the applicant’s detention during this period was for no longer than thirty-five days, as he was moved to a common dormitory once he tested negative for drugs, following regular testing (see paragraph 57 above) and did not suffer any harmful psychological or physical effects as a result of this custodial regime. The Court notes that, the Government have not explained whether drug testing was available at an earlier date, but the applicant has presented no argumentation in this respect. 73. Conversely, the parties are in dispute as to whether any further assessment was done to determine the applicant’s state of mind at that stage (see respectively paragraphs 57 and 54 in fine ). It does not appear that there had been any further medical or psychiatric assessment conducted in respect of the applicant for the duration of the period of his separation from others. Such a course of action could only be explained if the determination of the applicant’s risk factors (self ‑ harm/suicide/harming others) was an automatic result of his testing positive for drugs. In that case CCTV monitoring could be considered sufficient. However, if the applicant’s risk factors were established for reasons other than his drug consumption, a medical follow up would have been necessary to monitor the risk the applicant could have posed to himself and/or to others prior to his release and the Court draws attention to this serious shortcoming. Indeed, the Court is preoccupied that such a situation could place particularly vulnerable inmates at risk, and it emphasizes that such a measure requires regulation and rigorous adherence to medical protocols to safeguard against such risk. However, in the absence of any clarification on the matter, the Court notes that in the present case the applicant has not claimed that he in fact needed psychiatric or even medical help during such time, quite the contrary (see paragraph 54 above) nor did the CCTV surveillance indicate any erratic behaviour calling for specific attention. Moreover, the applicant did not argue that there existed reasons militating against his release into the dormitory, and the Government submitted that all inmates were assessed prior to their placement in the general population. While they gave no proof relevant to this particular case, nor indicated who made such an assessment, the Court considers that no harmful consequences having ensued in the present case, such shortcoming has no impact on the assessment of the present complaint, but calls for the authorities attention on a more general level. 74. Importantly, the Court notes that the restrictions applied during this period did not amount to complete sensory isolation, coupled with total social isolation, but relative social isolation. In particular, the applicant has not disputed that he had had regular meetings and calls with his legal counsel for long stretches of time as well as regular contact with the prison authorities, including the Chaplain, and that after the first fourteen days he had also had contact with his family – in this connection the Court also notes the applicant’s contradictory allegation that in his one hour out-of-cell activity he had to call his family in respect of which he didn’t exclude the first fourteen days (see paragraph 50 above). In any event, it is clear that he had only been isolated from other inmates (compare Podeschi v. San Marino, no. 66357/14, § 116, 13 April 2017, concerning a de facto isolation as opposed to a de jure one, and Peňaranda Soto, cited above, §§ 76-77), and even in that context, the Government claimed that communication was still possible from behind their cell doors and the applicant did not dispute that. Moreover, it has not been claimed that correspondence was in any way limited during such period – and it does not appear that the applicant has suffered any harmful physical or psychological effects in consequence of this regime (compare Bastone v. Italy (dec.), no. 59638/00, ECHR 2005 ‑ II (extracts)). 75. The Court will nevertheless examine the material conditions in which he had been detained during this custodial regime. 76. While it is unclear to the Court why the applicant was only allowed one hour of “out-of-cell activity”, but not proper outdoor activity during this thirty-five day period, and why he had had no access to books for the first twenty-seven days (despite the applicable limitations of his custodial regime), the Court notes that the applicant was given the possibility of exercising indoors as allowed by the Prisons Regulations (see Regulation 28 at paragraph 18 above), and that despite having the possibility of requesting his own books or writing materials (see Regulation 8(1) at paragraph 18 above), the applicant has not submitted that he had made such request and was denied. In that light and given the limited periods at issue, these factors on their own do not justify a conclusion that the applicant was held in conditions in breach of Article 3 (compare, mutatis mutandis, Mahamed Jama v. Malta, no. 10290/13, § 101, 26 November 2015, and contrast, for example, the conditions applicable to an applicant for a period of eleven months, for protective purposes, during his pre-trial detention in X v. Turkey, no. 24626/09, §§ 36-45, 9 October 2012, or those in Csüllög v. Hungary, no. 30042/08, §§ 33-38, 7 June 2011, and Iorgov v. Bulgaria, no. 40653/98, § 82, 11 March 2004, which concerned periods of two or three years). In this connection, the Court however finds it opportune to recall that according to relevant CPT standards, prisoners, without exception, must be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out-of-cell activities, bearing in mind that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather. Indeed, according to the relevant international standards, prisoners should be able to spend a reasonable part of the day outside their cells, engaged in purposeful activity of a varied nature (work, recreation, education) (see Muršić v. Croatia [GC], no. 7334/13, § 133, 20 October 2016). 77. In so far as the applicant complained about the conditions in his single occupancy cell, the Court notes that: The applicant had available to him “makeshift” bedding and he had been kept in shorts and T-shirt and refused access to his own clothing, for protective purposes, upon medical advice. It is not for the Court to second guess those findings. In particular the Court notes that the applicant had nonetheless his own bedding, namely a foam mattress, albeit of limited comfort. However, the applicant claimed that the clothes he had been given were not sufficiently warm (see Nazarenko v. Ukraine, no. 39483/98, § 139, 29 April 2003) and that he had not been allowed access to his own clothes. In this connection, the Court notes that although the requirement for prisoners to wear prison clothes may be seen as an interference with their personal integrity, it is undoubtedly based on the legitimate aim of protecting the interests of public safety and preventing public disorder and crime (ibid.). In the present case, the tear-proof clothing provided to the applicant further served the purpose of protecting him from any possible self-harm – an option favoured by the CPT (see Hellig v. Germany, no. 20999/05, § 56, 7 July 2011, and the references therein). The Court notes that the applicant complained about the cold, and the Court considers that the applicant’s attire was certainly light, even for a Maltese winter. While suffering from the heat or the cold are conditions which cannot be underestimated as they may have effects on a person’s well ‑ being and may in extreme circumstances affect health (see, inter alia, Aden Ahmed v. Malta, no. 55352/12, § 94, 23 July 2013), the Court observes that the applicant had been provided with two blankets. The provision of blankets must have aided the situation to some extent, and it does not transpire that the applicant suffered any health related concerns in this connection (see, for example, Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13 and 52165/13, § 90 in fine, 12 January 2016). According to the Government he could also have requested more blankets, and it has not been shown or claimed that the applicant requested further blankets and was refused (see Story and Others, cited above, § 118, and Yanez Pinon and Others, cited above, § 110). 78. In relation to the sanitary facilities, the Court has previously taken issue with cells which were not equipped with automated flushing systems, even more so when water was not readily available to flush them (see Story and Others, cited above, § 121, and the case-law cited therein). However, in the present case, not only was there justification for this situation - namely to avoid ligature points and prevent from self-harm - but the guards could flush the toilet from the outside all throughout the day, as admitted by the applicant, and the Court has no reason to doubt the Government’s contention that this was possible also at night time. Further, while there appears to have been no wash hand basin or running water available, nor, according to the applicant, toilet paper, it has not been claimed that no water (bottled or in a bucket) had been available to the applicant (see Regulation 23 (3), at paragraph 18 above), at least during the day, to see to any hygienic needs. Moreover, while the absence of an adequate supply of toilet paper in a prison may raise an issue under Article 3 of the Convention (see Valašinas v. Lithuania, no. 44558/98, § 104, ECHR 2001 ‑ VIII), it has not been claimed that the applicant requested this and was denied. 79. As to lighting and ventilation, the applicant has eventually admitted that the cell had been equipped with a window, which, from the photos submitted to the Court, appears to be of a reasonable size and allowed both for natural light and ventilation, despite that only one third of it could be opened. Further, while the artificial lighting which remained on, day and night, could undeniably contribute to a detainees frustration (see Starokadomskiy v. Russia, no. 42239/02, § 46, 31 July 2008) the Government submitted that the lights could be seen to by the guards upon request (see also Regulation 20, at paragraph 18 above). 80. Lastly, the Court notes that the applicant also complained that he had not been provided with (presumably drinking) water, food and cigarettes from 10 p.m. to 6 a.m. In the absence of any detailed submissions from the parties, the Court refers to Regulation 25 (see paragraph 18 above) and observes that the cases brought before the Court concerning the CCF, in fact show that convicted detainees are allowed three meals a day (see, for example, Abdilla, cited above, § 51). Moreover, according to Regulation 25 detainees on remand may also be allowed food from other sources. Thus, in the absence of any contrary allegation, it cannot be said that the applicant suffered hunger or thirst (compare and contrast Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006; Stepuleac v. Moldova, no. 8207/06, § 55, 6 November 2007; and Korneykova and Korneykov v. Ukraine, no. 56660/12, § 141, 24 March 2016) nor that the deprivation of any other products over limited periods can be considered as a deprivation of the applicant’s vital needs. 81. It follows that, from the material available to it, bearing in mind the limited stringency of the measure, its duration, the objective pursued, and the conditions in which it was imposed, as well as the lack of significant effects on the applicant, whilst reiterating its concern about the matters highlighted above, the Court cannot find that the applicant’s situation during the first period of his detention amounted to treatment contrary to Article 3. 82. There has therefore been no violation of that provision. The period from 4 January 2020 onwards (a) The parties’ submissions (i) The applicant 83. The applicant’s submissions, at the time of lodging his application, are set out in paragraphs 13 and 14 above. In his observations he further claimed that occupation in the dormitory often increased to six persons and that owing to the presence of large furniture the effective free space per prisoner was closer to 2.5 - 4 sq.m. He considered that a detainee’s living space could not possibly include a yard where he could, on occasion, take a stroll, as argued by the Government. Moreover, the yard could only be accessed for a maximum of one hour between 8 a.m. - 12 p.m. and then from 2 p.m.- 7 p.m. - not continuously as falsely stated by the Government. 84. Additionally, the applicant had been denied any form of exercise, cultural, or social activities, and had been restrained to his cell for over twenty-three hours a day. He had also not been allowed to call his family members on Skype in March 2020, and later had been allowed to call them only once a week, with a prison guard sitting next to him throughout the call. While in August 2020 his cell had been furnished with a toaster, kettle, TV, fire extinguisher, fridge and washing machine following complaints lodged in January 2020, prior to this, he would wash his clothes in the wash basin. (ii) The Government 85. The Government submitted that the applicant’s claims were untrue and incoherent, for example in relation to his skype access and yard access. Further, the Government submitted that, during his detention, the total number of occupants had been largely maintained at between three and four occupants, including the applicant. According to the affidavit of the prison director (submitted to the Court) it was only in exceptional circumstances that the number of occupants had increased to five. The dormitory was 30 sq.m. large (29.843 sq.m. to be exact), meaning that inmates had 7.5 sq.m. under normal circumstances (where there had been up to four inmates at one time) and 6 sq.m. when the number of inmates had increased to five in exceptional circumstances and for a short period of time. Connected with the dormitory itself, the inmates had continuous and uninterrupted access to a yard of 18 sq.m. in size, from 8 a.m. until 7 p.m. every day. Therefore, throughout most of the day, the applicant’s personal space increased to 12 sq.m. (9 sq.m. in the above-mentioned exceptional circumstances). In this connection the Government noted that the applicant was also inconsistent in his submissions concerning the use of the two different yards and the time allotted (see paragraph 83 above). The Government clarified that he had had access to the small yard of 18 sq.m. (attached to the dormitory) throughout the entire day (from 8 a.m. until 7 p.m.) and then he had also had access, for one hour per day, to the much larger yard for his out-of-cell activity. The Government strongly disputed that the applicant was only allowed to walk in the yard for thirty minutes per day, as alleged. 86. Contrary to that stated by the applicant, the detainees were provided with a washing machine within their dormitory which they could use freely. In so far as the applicant had relied generally on the CPT report of 2016, the Government submitted that the situation had greatly improved so much so that the applicant had never complained to the Visitors Board during his stay. 87. In so far as the applicant had not been allowed to use the gym, this had been intended to protect the inmates from possible exposure to Covid ‑ 19. Indeed at the time (May 2020) all gyms in the entire country had been closed, and the applicant had been once again allowed to use the gym at the time of the Government’s submissions. The same held for his submissions concerning mass at a time when all church services had been stopped throughout the country. He, however, had had access to a chaplain during that time. The Government considered that it was contradictory that, on the one hand, the applicant complained about these measures but, on the other hand, he complained that the Government had not taken enough measures to protect him against Covid-19 (see paragraph 98 below). It was also true that family visits had been suspended, in order to protect inmates from the outbreak (as had been the case for care homes), however, they were allowed to contact their family via skype once a week, and had continuous access to a telephone. If the applicant chose not to make use of those services, it could not be blamed on the State. (b) The Court’s assessment (i) General principles 88. The Court has stressed on many occasions that under Article 3 it cannot determine, once and for all, a specific number of square metres that should be allocated to a detainee in order to comply with the Convention. Indeed, the Court has considered that a number of other relevant factors, such as the duration of detention, the possibilities for outdoor exercise and the physical and mental condition of the detainee, play an important part in deciding whether the detention conditions satisfied the guarantees of Article 3. Nevertheless, extreme lack of space in prison cells weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” within the meaning of Article 3 (see Muršić v. Croatia [GC], no. 7334/13, § 103, 20 October 2016, and the case-law cited therein). 89. The Court finds it important to clarify the methodology for the calculation of the minimum personal space allocated to a detainee in multi-occupancy accommodation for its assessment under Article 3. The Court considers, drawing from the CPT’s methodology on the matter, that the in ‑ cell sanitary facility should not be counted in the overall surface area of the cell. On the other hand, calculation of the available surface area in the cell should include space occupied by furniture. What is important in this assessment is whether detainees had a possibility to move around within the cell normally (ibid., § 114). 90. The Court considers that a strong presumption of a violation of Article 3 arises when the personal space available to a detainee falls below 3 sq.m. in multi-occupancy accommodation. It then remains for the respondent Government to demonstrate convincingly that there were factors capable of adequately compensating for the scarce allocation of personal space. The cumulative effect of those conditions should inform the Court’s decision whether, in the circumstances, the presumption of a violation is rebutted or not (ibid., §§ 124-126). 91. More generally, when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). Quite apart from the necessity of having sufficient personal space, other aspects of material conditions of detention are relevant for the assessment of whether they comply with Article 3 (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 149 et seq., 10 January 2012). (ii) Application of the principles to the present case 92. The Court notes that the parties are in disagreement as to different elements related to the space available to the applicant. The Court observes that from the plans of the dormitory submitted to the Court it is clear that the dormitory, measuring according to the Government 30 sq.m, (while the applicant claimed it was 34.8 sq.m.), is adjacent to a small yard measuring 18 sq.m. to which the detainees of the dormitory had access all day long. The Court also observes that according to the plans submitted to the Court, the bathroom within the dormitory consisted of an area of around 3 sq.m. The dormitory also contained three bunk beds, a regular six-person table and a fridge. Thus, with reference to the methodology and the principles cited ‑ above (at paragraphs 89 and 90), it is clear that even assuming that the dormitory measured 30 sq.m. including the bathroom, hosted six people all throughout, and that the yard adjacent to the dormitory (to which the applicant had access all day) was to be excluded from the surface area, the applicant still had available an individual sleeping place and 4.5 sq.m. of personal space and thus could move around normally (given the limited furniture). 93. Of the other elements relevant for the assessment of the conditions of detention, special attention must be paid to the availability and duration of outdoor exercise and the conditions in which prisoners could take it. As noted in the assessment of the previous complaint, the Prison Standards developed by the CPT make specific mention of outdoor exercise and consider it a basic safeguard of prisoners’ well-being that all of them, without exception, be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out ‑ of ‑ cell activities (see Ananyev and Others, cited above, § 150). The Court notes that the applicant had access to the small yard (attached to the dormitory) all throughout the day (from 8 a.m. until 7 p.m.) and had access for one hour per day to the much larger yard (or to the gym, an option he often preferred) for his out-of-cell activity. Indeed, the applicant has not substantiated, nor in any way attempted to explain, why he – unlike others – would have allegedly only been allowed thirty minutes of exercise time (as alleged in the application form), at any point or all throughout his detention. Moreover, in his later submissions he admitted that the yard could be accessed for a maximum of one hour per day. 94. With respect to the applicant’s other material complaints – the mere fact that detainees in the dormitory slept on bunk beds and shared a toilet, shower, and handbasin (between four to six people), does not constitute inhuman or degrading treatment, as is the case with washing clothes and dishes in the same basin. Moreover, in this respect the applicant admitted that he had eventually been provided with a washing machine. 95. Lastly, the Court notes that the applicant complained that for a certain unspecified period he had had no access to the gym, to his family, to church or other activities. The Government submitted that this limited access, in around May 2020, had been the result of measures aimed at preventing the arrival and spread of the Covid-19 virus within the detention facility. Moreover, similar limitations had been imposed on all the population. 96. The Court notes that the limitations complained of occurred within a very specific context, namely during a public health emergency (see Fenech (dec.), cited above, § 11) and were put in place in view of significant health considerations, not only on the applicant but on society at large. Indeed, the Court has already had occasion to note that the Covid ‑ 19 pandemic is liable to have very serious consequences not just for health, but also for society, the economy, the functioning of the State and life in general, and that the situation should therefore be characterised as an “exceptional and unforeseeable context” (see Terheş v. Romania (dec.), no. 49933/20, 13 April 2021). With that in mind the Court considers that the mere fact that for a limited time (presumably three months, see Fenech, cited above, § 88) the applicant could not use the gym or attend mass (while still having access to a Chaplain) - measures which moreover were applicable to all the prison detainees, and the population at large – cannot be considered to have caused him distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention during a pandemic. Similarly, with respect to the limitation on his family contacts, the Court notes that detention, like any other measure depriving a person of his liberty, entails inherent limitations on one’s private and family life. However, it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015). Indeed, in the present case, while the restrictions related to the pandemic were in place, family visits had been suspended to secure the detainees’ well-being. It has not been argued that this measure was not necessary, proportionate, or restricted in time. Indeed, following a brief period, which the Court considers would have been necessary to make the relevant arrangements, the applicant had been allowed to call his family via skype once a week, and he could contact them over the phone regularly all throughout the relevant period. Thus, alternative measures had been put in place and the applicant had been able to maintain regular contact with his family and have news of their well ‑ being during the difficult times pertaining to the pandemic. This was a situation endured by persons at liberty all over the world, and the applicant was no exception. 97. Bearing in mind all the above, the Court considers that the applicant’s conditions of detention were not in breach of Article 3. ALLEGED VIOLATION OF ARTICLE 2 AND 3 OF THE CONVENTION 98. The applicant complained about the risk to his life due to the Covid ‑ 19 pandemic and his vulnerable status, in relation to which the authorities had taken no steps to safeguard his life and health while in detention, as provided in Articles 2 and 3 of the Convention. Article 2 in so far as relevant, reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” AdmissibilityIncompatibility ratione personae/materiae in respect of Article 2 Incompatibility ratione personae/materiae in respect of Article 2 Incompatibility ratione personae/materiae in respect of Article 2 (a) The parties’ submissions 99. The Government submitted that the applicant had failed to show that the alleged shortcomings had truly placed his life at imminent risk. On the contrary, his allegations were completely hypothetical. They noted that (at the date of submissions - 25 May 2021) more than one year since the first case of Covid-19 in Malta, there had not been a single case of “community transmission” [3] of Covid-19 within the CCF, nor any death of someone who had tested positive for the virus. They further noted that, as a general rule, Article 2 was applicable only where death had ensued or where the life of an identified individual had been placed in manifest jeopardy when such state of affairs was imputable, in one way or another, to the acts or omissions of the State. This was not the situation in the present case, where the applicant’s life had never been in danger. 100. The applicant submitted that whether others or himself had been infected was irrelevant and did not render his complaint devoid of merit. His complaint was that the prison authorities and the Maltese courts had failed to take into account the applicant’s special status as a vulnerable individual who lacked a kidney. By virtue of being both a pre-trial detainee, as well as a detainee with a serious health risk, he had to be specifically safeguarded against any potential future Covid-19 infection in the prison. He relied on the medical report submitted to the Court (see paragraph 15 above) and was of the view that a Covid-19 infection was likely to present a serious risk to his life and/or or irreparable and serious injury, owing to a combination of his medical condition, his age, and the particularly lethal nature of the disease. Thus, due to the absence of any individualized planning around the applicant’s vulnerability, his anxiety and fear of imminent death persisted, and he was clearly a victim of the violation complained of. (b) The Court’s assessment 101. The Court reiterates that, in order to be able to lodge a petition by virtue of Article 34, a person, non-governmental organisation or group of individuals must be able to claim to be the victim of a violation of the rights set forth in the Convention (see Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010). In order for applicants to be able to claim to be a victim, they must produce reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur; mere suspicion or conjecture is insufficient in this respect (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014). 102. The Court has previously held that the question whether or not the applicant could claim to be a victim of the violation alleged was relevant at all stages of the proceedings under the Convention (see Tănase, cited above, § 105, and the case-law cited therein). The Court notes that the provisions of the Convention are to be interpreted in a manner which renders its safeguards practical and effective. In assessing whether an applicant can claim to be a genuine victim of an alleged violation, account should be taken not only of the formal position at the time when the application was lodged with the Court but of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court (ibid.). Thus, the question whether an applicant has victim status falls to be determined at the time of the Court’s examination of the case where such an approach is justified in the circumstances (ibid., § 106). 103. The Court reiterates that it has applied Article 2 both where an individual has died (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004 ‑ XII) and where there was a serious risk of an ensuing death, even if the applicant was alive at the time of the application (see for a series of examples Brincat and Others v. Malta, nos. 60908/11 and 4 others, § 82, 24 July 2014). In particular, in Brincat and Others the Court found that Article 2 applied in respect of an applicant who died of malignant mesothelioma which was known to be a rare cancer associated with asbestos to which the applicant had been exposed for a decade in the Malta Drydocks. It however found (§ 83) that the provision did not apply to the remaining applicants whose respiratory problems and other complications related to exposure to asbestos, had not indicated malignant mesothelioma as their conditions did not constitute an inevitable precursor to the diagnosis of that disease, nor where their conditions of a life ‑ threatening nature. 104. The Court considers that in his application lodged in May 2020, at the beginning of the pandemic when little was yet known about the virus, the applicant sufficiently explained why he considered that the domestic authorities had not taken sufficient measures to fight the spread of Covid-19 in prison and to protect him personally, as a vulnerable individual lacking a kidney, who could be directly affected by such a virus (see, a contrario, Zambrano v. France (dec.), no. 41994/21, § 43, 7 October 2021). Today, more information is publicly available about the virus, its several mutations and their specific effects on the body as well as their contamination capacity. According to the World Health Organisation (‘WHO’) as of 21 February 2022, worldwide there have been 423,437,674 confirmed cases of Covid-19, including 5,878,328 deaths, reported to the WHO [4]. Given these figures and without diminishing the seriousness of this sometimes deadly virus, the Court cannot consider that individuals are a victim of an alleged violation of Article 2 without substantiating that in their own circumstances the acts or omissions of the State have or could have put their life at real and imminent risk. 105. In the present case the Court cannot ignore that – while some inmates at CCF have been infected through traceable chains, and survived – more than a year and half after the start of the pandemic, that is at the date of the last observations (20 October 2021), the applicant had not been infected. Moreover, vaccination had been made available to the applicant at the latest in April 2021 – although it is not known if he availed himself of this opportunity. 106. In any event, even assuming that the applicant were to be infected eventually, the Court notes that according to the applicant’s medical report, drawn up on his entry into prison, apart from the lack of a kidney, the applicant has no underlying health conditions, and it has not been claimed that the absence of a kidney has ever affected the applicant’s quality of life or required any treatment to date – any vulnerability is therefore relative. In relation to his condition of having only one kidney, the applicant relied solely on a report of a Consultant Surgeon (see paragraph 15 above), dated April 2020 at the start of the pandemic, which states that the applicant would be at risk of more serious complications had he to be infected with the virus. However, despite the passage of time, the applicant has not relied on any studies or relevant materials capable of giving a clear picture of the chances that a man of his age (early forties), lacking a kidney, would certainly or quite likely die of the disease, had he to be infected (pre or post vaccination). Thus, the Court cannot speculate as to whether his condition in such case would be of a life-threatening nature which would therefore attract the applicability of Article 2 (compare Shelley v. the United Kingdom (dec.), no. 23800/06, 4 January 2008, concerning a complaint about the authorities’ decision not to implement a needle ‑ exchange programme for drug users in prisons to help prevent the spread of viruses, where the Court stressed that irrespective of the higher levels of infection of HIV and HCV within prison populations, it was not satisfied that the general unspecified risk, or fear, of infection as a prisoner was sufficiently severe as to raise issues under Articles 2 or 3 of the Convention). 107. The Court does not exclude the applicability of Article 2 in certain Covid-19 related cases. However, in the circumstances of the present case, it considers that the provision is not applicable and that the applicant cannot claim to be a victim of the alleged violation under Article 2. 108. It follows that the Government’s objection is upheld and that the applicant’s complaint under Article 2 of the Convention is incompatible with the provisions of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4. Exhaustion of domestic remedies 109. The parties maintained their submissions made in the context of the objection under Article 3 examined above also in relation to this complaint. 110. For the reasons set out at paragraph 41 above, also relevant to the present complaint, the Court dismisses the Government’s objection. Conclusion 111. The Court notes that the complaint under Article 3 is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 112. Relying on the Court’s case-law, the applicant submitted that Article 3 obliged States to adequately ensure the health and well-being of a prisoner and, where necessitated by the nature of a medical condition, the State must ensure regular and systematic supervision, involving a comprehensive strategy aimed at either curing the detainee’s medical conditions or preventing their aggravation. In an exceptional situation, a conditional release of a seriously ill prisoner may be required under the Convention. Article 3 also imposed a positive obligation on States to put in place effective methods for the prevention and detection of contagious diseases in prisons. This included the duty to identify the carriers of a germ or a contagious disease upon arrival in prison, to isolate them and treat them effectively, as the prison authorities cannot ignore the infectious state of their prisoners and expose others to the real risk of contracting serious diseases. 113. The applicant argued that despite imprisoning him sine die, the authorities had failed to prevent his life from being unavoidably put at risk thus, causing him distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. Medical evidence showed that “prisons and centres of detention were well recognized ‘epidemiological pumps’’ [5] and the related mortality rates were as much as 50% higher for prisoners than for people in the wider community, especially as such communicable diseases were often not adequately treated with potential lethal consequences [6]. The WHO had noted that the health risks related to the spread of communicable diseases in prisons was frequently aggravated by the unhealthy conditions of imprisonment [7]. 114. According to the applicant, as outlined by the WHO, the minimum steps that Malta should have taken to ensure adequate safeguarding against infection included: ensuring good hygiene standards and food quality; ensuring systematic medical screening for transmissible diseases for every newly arrived detainee or prison staff; separating the most vulnerable prisoners; and enforcing “strong infection prevention and control (“IPC”) measures, adequate testing, treatment and care”. The CPT had, in 2016, noted the CCF’s inability to handle outbreaks of disease, in that instance the critique related to a poorly handled outbreak of diarrhoea, and consequently recommended that the Maltese authorities put in place robust policies to deal immediately with health (and other) crises that may take place within the prison, including adopting a proactive approach, with a view to minimising the risk of the spread of certain infections and ensure the speedier analysis of test results (see paragraph 33 above). However, the Government failed to heed those warnings and continued to expose the applicant to a regime wholly at odds with the WHO recommendations. 115. In sum, the authorities should have ensured appropriate measures to prevent the introduction and spread of the disease in the prison, as well as enforced comprehensive, preventative, hygiene measures and strengthened medical support, particularly tailored according to the applicant’s medical needs. In particular, the prison authorities had failed to insulate the applicant from exposure to the risk of contracting serious diseases, particularly Covid ‑ 19 despite his condition. He argued that the Maltese authorities should have made regular health and risk assessments for the applicant, and that the prison should have made arrangements for him to be moved into safer living conditions when infection does strike the prison (sic.). This included alternatives to detention or transfer to a safer medical/rehabilitative centre. According to the applicant the State could not ignore the applicant’s sensitive health situation and rest on the basic and general Covid-19 regime designed to protect the detainees in the prison facility as a whole, which in his observations, he admitted had been put in place. 116. The applicant also considered that the authorities’ actions were wholly contrary to those obligations. First, they failed to genuinely prioritize bail for the applicant (as a pre-trial detainee), and to take into account the applicant’s health (the loss of one kidney). He had been denied any prospect of abiding by the essential requirement of physical distancing, and the detainees shared facilities. His food was delivered by hand without any attempt to ensure hygiene or insulation from infection. Further, the prison exposed the applicant through daily contact with guards and nurses and a chaplain (who rotated and left the facility every week). On any single day, the applicant had been exposed to ten persons and the authorities had done little but provide the applicant with a mask and hand washing sanitiser. (b) The Government 117. The Government submitted that, even before there was the first case of Covid-19 in the country, the prison administration had put in place a contingency plan which had been approved by the domestic public health authorities, to safeguard the well-being of the inmates (900) and the prison staff. According to that plan, upon the finding of the first case of Covid-19 in the country, several ‘drastic’ steps were to be taken, including that visits from family members would be suspended, that each CCF official would be checked for fever prior to entering the facility, and that any official with a high temperature would be immediately sent home. If any prisoner was found to run a fever, he would be immediately transferred to another zone of the prison which was specifically designed as a ‘quarantine zone’. According to the plan further measures would be put in place if a prisoner were to be infected. 118. In that case, according to the contingency plan, any externals were no longer allowed into the facility save for catering and cleaning services. The temperature of new detainees was to be taken on entry and precautionary measures were to apply for transfers to court hearings. Staff had also to be properly equipped with masks and gels, as well as the option to wear a disposable suit to avoid any contamination. 119. The contingency plan also prepared for the possibility of more than ten positive inmates. In such case, a lockdown of the prison would have been called, meaning that all inmates would remain in their respective cells for a period of time determined by the authorities and food would be distributed directly in the cells. No items would be allowed in or out of the prison. 120. The Government submitted that, apart from these planned measures, the authorities took other measures, some of which reflected the measures taken nationwide. Thus, all inmates and all staff had been provided with masks, and hand sanitiser had been installed everywhere. Care had been taken to ensure a high degree of cleanliness within the whole facility. 121. Furthermore, for several months, CCF was effectively in a lockdown. The prison administration worked on a system of weekly shifts, where the administration slept at the facility for a full week without any person going in or out of the facility. The details thereof were outlined in the contingency plan. The contingency plan had also provided that in the case of a complete lockdown for quarantine purposes of the entirety of the prison, including of the staff, three doctors, as well as nurses, would be called to work and live within the facility so as to provide all the necessary medical assistance that may be required to both inmates and staff. The authorities also purchased two decontamination pumps in order to decontaminate the property in the event of infected persons being detected. 122. The inmates of CCF were given priority (irrespective of their age) when the Government began to vaccinate the population. In fact, by 21 April 2021, every single inmate at CCF was fully vaccinated, except for those inmates who refused to be vaccinated. Those measures as well as the result achieved through them showed that the authorities took all the precautions necessary to avoid the proliferation of Covid-19 within the facility. 123. Thus, the Government disputed that they had not considered the applicant’s personal situation adequately, noting that the prison authorities carried out medical assessments upon admission of each and every inmate in order to be able to provide for the inmate’s well-being. At the same time, they noted that quite a significant proportion of the CCF community suffered from various ailments and in order to see to their needs, the prison authorities had invested hundreds of thousands of Euros over the past years to strengthen the provision of medical care within CCF, inaugurating a new, state of the art, medical centre in March 2021. 124. Lastly, the Government noted that in view of the above the applicant’s fear of contracting Covid-19 did not attain the minimum level of severity which was necessary, for any treatment to fall within the scope of Article 3. Indeed, the fear and anxiety that the applicant has felt has been shared and expressed by many throughout the world, whether they lived inside or outside an institution run by Government. The Court’s assessment (a) General principles 125. It cannot be said that the execution of detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000 ‑ XI). 126. The state of health, age and a severe physical disability constitute situations in which capacity for detention is assessed under Article 3 of the Convention. Although this provision cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Mouisel v. France, no. 67263/01, §§ 38 ‑ 40, ECHR 2002-IX). A lack of appropriate medical care for persons in custody is therefore capable of engaging a State’s responsibility under Article 3. In addition, it is not enough for such detainees to be examined and a diagnosis made; instead, it is essential that proper treatment for the problem diagnosed should also be provided (see Rooman v. Belgium [GC], no. 18052/11, § 146, 31 January 2019). Thus, the lack of appropriate medical care and, more generally, the detention of a sick person in inadequate conditions, may in principle constitute treatment contrary to Article 3 (see Ghavtadze v. Georgia, no. 23204/07, § 76, 3 March 2009). 127. In addition to the positive obligation to preserve the health and well ‑ being of a prisoner, in particular by the administration of the required medical care, Article 3 imposes on the State a positive obligation to put in place effective methods of prevention and detection of contagious diseases in prisons. First and foremost is the State’s obligation to screen detainees early, upon arrival in prison, to identify carriers of a germ or contagious disease, isolate them and treat them effectively. All the more so since prison authorities cannot ignore the infectious state of their inmates and, in so doing, expose others to the real risk of contracting serious illnesses (see Fűlöp v. Romania, no. 18999/04, § 38, 24 July 2012, and Dobri v. Romania, no. 25153/04, § 51, 14 December 2010). 128. On the whole, the Court takes a flexible approach in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee but should also take into account “the practical demands of imprisonment” (see Mikalauskas v. Malta, no. 4458/10, § 63, 23 July 2013 and the case-law cited therein). Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin v. Russia [GC], no. 47152/06, § 137, 23 March 2016, with further references). (b) Application of the general principles to the present case 129. In the present case, the Court considers that given the nature of Covid-19, its well-documented effects, as well as the fact that it is easily transmitted from one person to another ( via droplets or airborne particles containing the virus), the fears for the applicant’s health in the eventuality of contracting the virus, are not insignificant. Thus, in order to protect his physical well-being, the authorities had the obligation to put certain measures in place aimed at avoiding infection, limiting the spread once it reached the prison, and providing adequate medical care in the case of contamination. Preventive measures have to be proportionate to the risk at issue, however they should not pose an excessive burden on the authorities in view of the practical demands of imprisonment. This is even more so in the present case, where the authorities were confronted with a novel situation such as a global pandemic – unprecedented in recent decades – as a result of a new strain of coronavirus (called Covid-19) to which they had to react in a timely manner. 130. In limine the Court observes that on 12 March 2020 the Covid-19 outbreak was declared a pandemic. The Court shares the considerations made by the WHO that “in all countries, the fundamental approach to be followed is prevention of introduction of the infectious agent into prisons or other places of detention, limiting the spread within the prison, and reducing the possibility of spread from the prison to the outside community. This will be more challenging in countries with more intense transmission” and “Countries should prepare to respond to different public health scenarios, recognizing that there is no one-size-fits-all approach to managing cases and outbreaks of COVID-19” [8]. Furthermore, the Court observes that the passage of time has brought along not only new variants, but also an extended scientific knowledge of the virus as well as relevant responses (both via vaccinations and medical treatment). All these factors have made it possible for Governments to adapt their policies and protocols to the changing circumstances. This process is still ongoing, and it is in that light that the Court must not lose sight of the challenges being posed by the constant evolution of the Covid-19 pandemic. 131. Turning to the present case, the Court observes that before the first case of Covid-19 was detected in Malta, the prison authorities had already put in place a contingency plan in collaboration with the national health authorities. Regrettably, the Government failed to explain in detail to what extent that contingency plan was put in place once the pandemic hit Malta, and once the first case of Covid-19 was detected in the CCF. Nor did they give details about the numbers of contaminated inmates throughout the relevant period, but solely submitted that none of the ones who tested positive had died. They also failed to give any temporal context to the measures that were put in place – measures which, however, the applicant admitted had been put in place (see paragraph 115 above). 132. The Government explained that, for several months, at the outbreak of Covid-19 internationally, CCF was effectively in a lockdown, whereby visitors of all kinds were not allowed in and the staff was working weekly shifts to avoid excessive exposure to outside factors. According to the documented plan, staff had to be provided with protective equipment including disposable gears, which they could opt for, when in contact with inmates, to avoid contamination going both directions. The Court considers that these measures certainly diminished the risk of wide-spread contamination within the prison thus preserving the health and safety of inmates and staff. 133. Apart from the specific measures during the lockdown the Court takes account of the general measures listed by the Government, such as disinfection (by means of regular cleaning, hand sanitiser, and relative pumps), and mask wearing (compare Ünsal and Timtik v. Turkey (dec.), no. 36331/20, § 38, 8 June 2021), as well as the possibility of physical distancing given the size of the applicant’s dormitory and the personal space available to him, as well as the fact that he had access to open air all day long, via the yard adjacent to the dormitory (see paragraph 92 above). Moreover, there is no indication that the CCF, which hosts around 900 inmates, was or is generally overcrowded, a factor which could enhance proliferation of the virus. Thus, the Court considers that, contrary to the applicant’s wishes, in respect of the situation at the CCF there would be no pressing necessity to consider a greater use of alternatives to pre-trial detention, particularly for persons like the applicant accused of particularly serious crimes. 134. In addition, there had been put in place regular temperature verification of officials who could not enter the facility without such clearance, and hosted inmates who were transferred to a ‘quarantine zone’ in case of fever, allowing for immediate isolation of suspected cases. According to the contingency plan the same applied to new arrivals (over and above the medical screening on entry). This type of initial screening can be considered as satisfactory, particularly in the early phases of the pandemic (see Preparedness, prevention and control of COVID-19 in prisons and other places of detention, WHO, interim guidance, 15 March 2020, pg. 4, referenced at paragraph 24 above). 135. The parties made no submissions about the applicable procedures on entry in later periods. However, albeit not relied on by the parties, whose observations were submitted prior to the publication of the report, for completeness sake, the Court will not ignore relevant public findings made by a group of experts in the context of an inquiry ordered by the Minister under Chapter 273 of the Laws of Malta, dated 9 December 2021 [9]. The report aimed at scrutinizing certain procedures and policies undertaken at the CCF. According to that report: new detainees were subject to a rapid test, with immediate results, which would determine where the new detainee would be placed according to whether the test was positive or not; In certain cases, a PCR test would be administered; Nevertheless, data showed that between 1 September 2020 and 11 October 2021 any new detainee was kept in quarantine for fourteen days; Detainees who tested positive for the virus or were in quarantine underwent medical checks twice daily; More recently, following widespread vaccination and rapid testing, the quarantine period was decreased to 24-48 hours for persons who tested negative. In the Court’s view, the above shows that authorities maintained their vigilance and adapted their protocols to the evolving situation. 136. Importantly the Court notes that vaccination against Covid-19 was available to all inmates in early 2021 and by April 2021 all the inmates who wished so had been vaccinated. That instrument was deployed in an extremely timely manner in order to protect CCF inmates and the Government’s efforts in this respect must be lauded. 137. In so far as the applicant complained that he should have been insulated from exposure and protected more than other detainees, the Court takes note of the Government’s submission that various individuals in the prison could qualify as vulnerable. Given the practical demands of imprisonment and the novelty of the situation, the Court can accept that it may not be possible to make arrangements for each vulnerable individual to be moved to safer quarters, before any contamination occurs in the prison. While refined allocation procedures should be considered allowing prisoners at highest risk (such as those having cardiovascular disease, diabetes, chronic respiratory disease, or cancer) to be separated from others – the applicant has not made out a case that he fell within the category of the most vulnerable (see paragraph 106 above). 138. Further, even if that were the case, as noted above, contaminated persons would be moved to other quarters, contacts quarantined, and relevant decontamination processes would take place. Indeed, it is not irrelevant that at the date of filing observations, more than a year and a half since the start of the pandemic, the applicant did not submit that he was at any stage during his detention exposed to a Covid-19 positive individual and the mere fact that a group of detainees (none of whom was known to be positive for Covid-19) shared a dormitory and used the same medical, sanitary, catering and other facilities does not in itself raise an issue under Article 3 of the Convention (contrast, Feilazoo, cited above, § 92, where the applicant, who was not in need of quarantine, was placed in quarantine quarters with other persons who could have posed a risk to his health). In this connection it is also noted that water and detergents were readily available to the applicant in his dormitory (see paragraph 94 above), elements which are an asset for general precautionary cleaning. Further, the Court does not take issue with the fact that food was distributed by hand, given the provision of hand sanitiser to both guards and prisoners. 139. While it is true that CCF did not entirely prevent contamination within the prison, there is no indication that the spread of the virus had not been, and continues to be, limited via these measures, nor has the applicant claimed that the contaminations had gone out of hand. Admittedly, following the filing of observations, according to the WHO, all European countries have seen a spike in cases due to the highly transmissible Omicron variant. The region of Europe and central Asia saw over 7 million newly reported cases of Covid-19 in the first week of 2022, and the Institute for Health Metrics and Evaluation (IHME) forecasts that more than 50% of the population in the Region will be infected with Omicron in January-February 2022 [10]. In consequence, it would be unrealistic to expect that a detainee would never come in contact with a positive person, even more so given that certain measures could only be kept in place for as long as reasonably necessary (such as, for example, the suspension of family visits). 140. In light of the above, the Court considers that the authorities have put in place adequate and proportionate measures in order to prevent and limit the spread of the virus. 141. Lastly, the Court reiterates that absent or inadequate medical treatment, particularly when the disease has been contracted in detention, is most certainly a subject for the Court’s concern (see Shchebetov v. Russia, no. 21731/02, § 71, 10 April 2012). In this connection the Court notes that even assuming that the applicant had to contract Covid-19 while in prison, there is no indication that qualified assistance would not be available, thus dispelling any ulterior anxiety in this respect (see, a contrario, Khudobin v. Russia, no. 59696/00, § 95, ECHR 2006 ‑ XII (extracts). In particular, quite apart from the regular medical staff, a medical centre was also inaugurated in March 2021. 142. In these circumstances the Court does not find that the authorities failed to secure the applicant’s health (compare, albeit in a different context, Artyomov v. Russia, no. 14146/02, § 109, 27 May 2010), nor that he was subjected to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. 143. It follows that there has been no violation of Article 3. | The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in relation to the applicant’s detention while he was segregated. It found in particular that the applicant’s period of segregation from others – due to having tested positive for cocaine – had lasted for no longer than 35 days; he had not suffered any harmful psychological or physical effects as a result, and the restrictions applied had not amounted to complete sensory isolation. The Court also held that there had been no violation of Article 3 of the Convention in relation to the conditions of detention later in the dormitory. It noted that there had been no overcrowding, and as for the other restrictions that the applicant complained of, the Court considered that they had occurred within a very specific context, namely during a public health emergency, and had been introduced for important health reasons. Moreover, they had been imposed not only on the applicant but on society at large. Given the exceptional and unforeseeable context related to the Covid-19 pandemic, those measures, which were proportionate and restricted in time, could not be considered to have caused him greater distress or hardship than was unavoidable during detention in a pandemic. Lastly, the Court held that there had been no violation of Article 3 in relation to the State’s obligation to preserve his health and well-being. It considered, in this respect, that the authorities had put in place relevant measures and had been vigilant in adapting their protocols to the evolving situation. While provision should be made to allow prisoners at highest risk to be separated from others, the applicant had not shown that he fell within the category of the most vulnerable. The fact that he shared a dormitory and used the same medical, sanitary, catering and other facilities with other non-Covid-19-infected detainees did not in itself raise an issue under Article 3. |
147 | Abortion | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 32. Article 38 of the Constitution reads as follows: “ The Republic of Poland shall ensure the legal protection of the life of every human being. ” 33. Article 47 of the Constitution reads: “ Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life. ” B. The 1993 Law on family planning ( protection of the human foetus and conditions permitting pregnancy termination ) and related statutes 34. The Law on family planning ( protection of the human foetus and conditions permitting pregnancy termination ) (“the 1993 Act”), which is still in force, was passed by Parliament in 1993. Section 1 provided at that time that “every human being shall have an inherent right to life from the moment of conception”. 35. This Act provided that legal abortion was possible only until the twelfth week of pregnancy where the pregnancy endangered the mother ’ s life or health; or prenatal tests or other medical findings indicated a high risk that the foetus would be severely and irreversibly damaged or suffering from an incurable life-threatening disease; or there were strong grounds for believing that the pregnancy was a result of rape or incest. 36. On 4 January 1997 an amended text of the 1993 Act, passed on 30 June 1996, came into force. Section 1(2) provided that “the right to life, including the prenatal stage thereof, shall be protected to the extent laid down by law”. This amendment provided that pregnancy could also be terminated during the first twelve weeks where the mother either suffered from material hardship or was in a difficult personal situation. 37. In December 1997 further amendments were made to the text of the 1993 Act, following a judgment of the Constitutional Court given in May 1997. In that judgment the court held that the provision legalising abortion on grounds of material or personal hardship was incompatible with the Constitution as it stood at that time [1]. 38. Section 4 a of the 1993 Act, as it stands at present, reads, in its relevant part: “ ( 1 ) An abortion can be carried out only by a physician where 1. pregnancy endangers the mother ’ s life or health; 2. prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life-threatening disease; 3. there are strong grounds for believing that the pregnancy is a result of a criminal act. (2) In the cases listed above under sub-paragraph 2, an abortion can be performed until such time as the foetus is capable of surviving outside the mother ’ s body; in cases listed under sub-paragraph 3 above, until the end of the twelfth week of pregnancy. ( 3 ) In the cases listed under sub-paragraphs 1 and 2 above the abortion shall be carried out by a physician working in a hospital. ... ( 5 ) Circumstances in which abortion is permitted under subsection ( 1 ), sub-paragraphs 1 and 2, above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman ’ s life.” 39. An Ordinance issued by the Minister of Health on 22 January 1997 on qualifications of doctors authorised to perform abortions contains two substantive sections. In its section 1, the requisite qualifications of doctors who can perform legal abortions in the circumstances specified in the 1993 Act are stipulated. Section 2 of that Ordinance reads: “The circumstances indicating that pregnancy constitutes a threat to the woman ’ s life or health shall be attested by a consultant specialising in the field of medicine relevant to the woman ’ s condition .” 40. Section 37 of the 1996 Medical Profession Act provides that in the event of any diagnostic or therapeutic doubts a doctor may, on his or her own initiative or upon a patient ’ s request and if he or she finds it reasonable in the light of requirements of medical science, obtain an opinion of a relevant specialist or arrange a consultation with other doctors. C. Criminal offence of abortion performed in contravention of the 1993 Act 41. Termination of pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence punishable under Article 152 § 1 of the Criminal Code. Anyone who terminates a pregnancy in violation of the Act or assists in such a termination may be sentenced to up to three years ’ imprisonment. The pregnant woman herself does not incur criminal liability for an abortion performed in contravention of the 1993 Act. D. Provisions of the Code of Criminal Procedure 42. A person accused in criminal proceedings, if he or she cannot afford lawyers ’ fees, may request legal aid under Article 78 § 1 of the Code of Criminal Procedure. Under Articles 87 § 1 and 88 § 1 of that Code, a victim of an alleged criminal offence is similarly entitled to request that legal aid be granted to him or her for the purpose of legal representation in the course of criminal investigations and proceedings. E. Offence of causing grievous bodily harm 43. Article 156 § 1 of the Criminal Code of 1997 provides that a person who causes grievous bodily harm shall be sentenced to between one and ten years ’ imprisonment. F. Civil liability in tort 44. Articles 415 et seq. of the Civil Code provide for liability in tort. Under these provisions, whoever by his or her fault causes damage to another person is obliged to redress it. 45. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator shall be liable to cover all pecuniary damage resulting therefrom. G. Case-law of the Polish courts 46. In a judgment of 21 November 2003 (V CK 167/03), the Supreme Court held that unlawful refusal to terminate a pregnancy where it had been caused by rape, namely in circumstances provided for by section 4 a ( 1 ) 3 of the 1993 Act, could give rise to a compensation claim for pecuniary damage sustained as a result of such refusal. 47. In a judgment of 13 October 2005 (IV CJ 161/05), the Supreme Court expressed the view that a refusal of prenatal tests in circumstances where it could be reasonably surmised that a pregnant woman ran a risk of giving birth to a severely and irreversibly damaged child, namely in circumstances set out by section 4a(1) 2 of the 1993 Act, gave rise to a compensation claim. III. RELEVANT NON-CONVENTION MATERIAL A. Observations of the ICCPR Committee 48. The Committee, having considered in 1999 the fourth periodic report on the observance of the United Nations International Covenant on Civil and Political Rights submitted by Poland, adopted the following conclusions (Document CCPR/C/SR.1779): “11. The Committee notes with concern: (a) strict laws on abortion which lead to high numbers of clandestine abortions with attendant risks to life and health of women; (b) limited accessibility for women to contraceptives due to high prices and restricted access to suitable prescriptions; (c) the elimination of sexual education from the school curriculum; and (d) the insufficiency of public family planning programmes. (Arts. 3, 6, 9 and 26) The State Party should introduce policies and programmes promoting full and non-discriminatory access to all methods of family planning and reintroduce sexual education at public schools.” 49. The Polish government, in their fifth periodic report submitted to the Committee (CCPR/C/POL/2004/5), stated: “ 106. In Poland data about abortions relate solely to abortions conducted in hospitals, i.e. those legally admissible under a law. The number of abortions contained in the present official statistics is low in comparison with previous years. Non-governmental organisations on the basis of their own research estimate that the number of abortions conducted illegally in Poland amounts from 80,000 to 200,000 annually. 107. It follows from the Government ’ s annual Reports of the execution of the [1993] Law [which the Government is obliged to submit to the Parliament] and from reports of non-governmental organisations that the Law ’ s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health- care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go. It happens that women are required to provide additional certificates, which lengthens the procedure until the time when an abortion becomes hazardous for the health and life of the woman. There [are] no official statistical data concerning complaints related to physicians ’ refusals to perform an abortion. ... In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the ... performance of abortions. ” 50. The Committee, having considered Poland ’ s fifth periodic report at its meetings held on 27 and 28 October and 4 November 200 4, adopted in its concluding observations (Document CCPR/C/SR.2251) the following relevant comments: “ 8. The Committee reiterates its deep concern about restrictive abortion laws in Poland, which may incite women to seek unsafe, illegal abortions, with attendant risks to their life and health. It is also concerned at the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions. The Committee further regrets the lack of information on the extent of illegal abortions and their consequences for the women concerned. ... The State Party should liberalise its legislation and practice on abortion. It should provide further information on the use of the conscientious objection clause by doctors, and, so far as possible, on the number of illegal abortions that take place in Poland. These recommendations should be taken into account when the draft Law on parental awareness is discussed in Parliament.” B. Observations of non-governmental organisations 51. In a report prepared by ASTRA Network on Reproductive Health and Rights in Central and Eastern Europe for the European Population Forum, Geneva, held on 12 to 14 January 2004, it is stated that : “ The anti-abortion law which was in force in Poland since 1993 resulted in many negative consequences for women ’ s reproductive health, such as: – many women who are entitled to legal abortions are often denied this right in their local hospitals; – abortions on social grounds are not stopped but simply pushed ‘ underground ’, as women seeking abortions can find a doctor who would perform it illegally or go abroad; – the effects of the law are felt primarily on the poorest and uneducated members of the society, as illegal abortions are expensive. Lack of knowledge about family planning lowers women ’ s quality of life. Their sexuality is endangered either by constant fear of unwanted pregnancies or by seeking unsafe abortion [s]. There is a strong disapproval and obstruction toward [ s ] those who choose abortions under the few conditions that still allow for it to occur. Doctors and hospitals frequently misguide or misinform women, who are legally entitled to terminate pregnancies, thereby placing the health of the women at serious risk. Doctors (and even whole hospitals, even though they have no right to do so) often refuse [ to perform ] abortion [ s ] in hospitals they work in, [ invoking the ] so - called clause of conscience – the right to refuse [ to perform ] abortion [ s ] due to one ’ s religious beliefs or moral objections – or even giving no justifications, creating problems as long ... as it is needed to make performing [ an ] abortion impossible under the law. There exists however a well organised abortion underground – terminations are performed illegally in private [ clinics ], very often by the same doctors who refuse [ to perform ] abortions in hospitals. The average cost of [an] abortion is ca 2000 [Polish zlotys] (equivalent [to the] country ’ s average gross salary). [The] Federation for Women and Family Planning estimates that the real number of abortions in Poland amounts to 80,000 to 200,000 each year.” C. Synthesis Report of the European Union Network of Independent Experts on Fundamental Rights 52. In its report entitled “Conclusions and Recommendations on the Situation of Fundamental Rights in the European Union and its Member States in 2004” dated 15 April 2005, the Network stated, inter alia : “While acknowledging that there is [as] yet no settled case-law in international or European human rights law concerning where the adequate balance must be struck between the right of the [woman ] to interrupt her pregnancy on the one hand, as a particular manifestation of the general right to the autonomy of the person underlying the right to respect for private life, and the protection of the potentiality of human life on the other hand, the Network nevertheless expresses its concern at a number of situations which, in the view of the independent experts, are questionable in the present state of the international law of human rights. A woman seeking abortion should not be obliged to travel abroad to obtain it, because of the lack of available services in her home country even where it would be legal for her to seek abortion, or because, although legal when performed abroad, abortion in identical circumstances is prohibited in the country of residence. This may be the source of discrimination between women who may travel abroad and those who, because of a disability, their state of health, the lack of resources, their administrative situation, or even the lack of adequate information ... may not do so. A [ woman ] should not be seeking abortion because of the insufficiency of support services, for example for young mothers, because of lack of information about support which would be available, or because of the fear that this might lead to the loss of employment: this requires, at the very least, a close monitoring of the pattern of abortions performed in the jurisdictions where abortion is legal, in order to identify the needs of the persons resorting to abortion and the circumstances which ought to be created in order to better respond to these needs. ... Referring to the Concluding Observations adopted on 5 November 200 4 by the Human Rights Committee upon the examination of the report submitted by Poland under the International Covenant on Civil and Political Rights (CCPR/CO/82/POL/Rev. 1, para. 8), the Network notes that a prohibition on non -therapeutic abortion or the practical unavailability of abortion may in fact have the effect of raising the number of clandestine abortions which are practised, as the women concerned may be tempted to resort to clandestine abortion in the absence of adequate counselling services who may inform them about the different alternatives opened to them. ... Where a State does choose to prohibit abortion, it should at least closely monitor the impact of this prohibition on the practice of abortion, and provide this information in order to feed into an informed public debate. Finally, in the circumstances where abortion is legal, women should have effective access to abortion services without any discrimination.” THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 53. Pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted. 54. In this connection, the Government argued that the applicant had failed to exhaust all the remedies available under Polish law as required by Article 35 § 1 of the Convention. 55. The Government referred to the Court ’ s case-law to the effect that there were certain positive obligations under the Convention which required States to draw up regulations compelling hospitals to adopt appropriate measures for the protection of their patients ’ lives. They also required an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession could be determined and those responsible made accountable ( see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V ). That positive obligation did not necessarily require the provision of a criminal ‑ law remedy in every case. In the specific sphere of medical negligence the obligation could, for instance, also be satisfied if the legal system afforded victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained ( see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I ). 56. The Government further asserted that the Polish legal system provided for legal avenues which made it possible to establish liability on the part of doctors for any damage caused by medical malpractice, either by way of criminal proceedings or by civil compensation claims. In the applicant ’ s case, a compensation claim would have offered good prospects of success. 57. The Government referred in that connection to the provisions of the Civil Code governing liability in tort. They further referred to two judgments given by the civil courts against the background of the 1993 Act. In the first judgment, given by the Supreme Court on 21 November 2003, the court had held that the unlawful refusal to terminate a pregnancy caused by rape had given rise to a compensation claim. In the second the Łomża Regional Court had dismissed, on 6 May 2004, a claim for non-pecuniary damages filed by parents who had been refused access to prenatal tests and whose child had been born with serious malformations. 58. The applicant submitted that, under the Court ’ s case-law, she should not be required to have recourse both to civil and criminal remedies in respect of the alleged violation of Article 8 of the Convention. If there was more than one remedy available, the applicant need not exhaust more than one ( see Yağcı and Sargın v. Turkey, 8 June 1995, §§ 42-44, Series A no. 319 ‑ A ). She further referred to a judgment in which the Court had found that the applicants, having exhausted all possible means available to them in the criminal- justice system, were not required, in the absence of a criminal prosecution in connection with their complaints, to embark on another attempt to obtain redress by bringing an action for damages ( see Assenov and Others v. Bulgaria, 28 October 1998, § 86, Reports of Judgments and Decisions 19 98 ‑ VIII ). 59. The applicant argued that pursuing civil proceedings would not be effective in her case. To date, there had been no final judgment of a Polish court in a case in which compensation had been awarded for damage to a woman ’ s health caused by a refusal of a therapeutic abortion allowed under the 1993 Act. She emphasised that the two cases referred to by the Government post - dated her petition to the Court under Article 34 of the Convention. Importantly, they were immaterial to her case because they concerned situations fundamentally different from the applicant ’ s, both as to the facts and law : one related to a claim for damages arising from the unlawful refusal of an abortion where the pregnancy had been caused by rape; the second concerned a claim for damages arising from the refusal of a prenatal examination. 60. Finally, she pointed out that under the Court ’ s case-law it was for an applicant to select the legal remedy most appropriate in the circumstances of the case ( see Airey v. Ireland, 9 October 1979, § 23, Series A no. 32 ). Effective deterrence against grave attacks on personal integrity (such as rape in M.C. v. Bulgaria, no. 39272/98, ECHR 2003-XII ), where fundamental values and essential aspects of private life were at stake, required the effective application of criminal-law provisions ( ibid., §§ 124, 148 ‑ 53, and X and Y v. the Netherlands, 26 March 1985, §§ 23- 24, Series A no. 91 ). In the circumstances, the criminal remedy chosen by the applicant was the most appropriate one. 61. The Court reiterates that, in its decision on the admissibility of the application, it joined to the merits of the case the examination of the question of exhaustion of domestic remedies (see paragraph 4 above). The Court confirms its approach to the exhaustion issue. II. THE MERITS OF THE CASE A. Alleged violation of Article 3 of the Convention 62. The applicant complained that the facts of the case gave rise to a breach of Article 3 of the Convention which, in so far as relevant, reads as follows: “No one shall be subjected to ... inhuman or degrading treatment ... ” 63. The Government disagreed. 64. The applicant submitted that the circumstances of the case had amounted to inhuman and degrading treatment in breach of Article 3 of the Convention. 65. She argued that treatment was degrading if it aroused in its victim “feelings of fear, anguish and inferiority capable of humiliating and debasing them” ( see Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25 ). The failure of the State to make a legal abortion possible in circumstances which threatened her health, and to put in place the procedural mechanism necessary to allow her to have this right realised, meant that the applicant was forced to continue with a pregnancy for six months knowing that she would be nearly blind by the time she gave birth. The resultant anguish and distress and the subsequent devastating effect of the loss of her eyesight on her life and that of her family could not be overstated. She had been a young woman with a young family already grappling with poor eyesight and knowing that her pregnancy would ruin her remaining ability to see. As predicted by her doctor in April 2000, her eyesight has severely deteriorated, causing her immense personal hardship and psychological distress. 66. The Court reiterates its case-law on the notion of ill-treatment and the circumstances in which the responsibility of a Contracting State may be engaged, including under Article 3 of the Convention by reason of the failure to provide appropriate medical treatment ( see, among other authorities, İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000 ‑ VII, mutatis mutandis ). In the circumstances of the instant case, the Court finds that the facts alleged do not disclose a breach of Article 3. The Court further considers that the applicant ’ s complaints are more appropriately examined under Article 8 of the Convention. B. Alleged violation of Article 8 of the Convention 67. The applicant complained that the facts of the case had given rise to a breach of Article 8 of the Convention. Her right to due respect for her private life and her physical and moral integrity had been violated both substantively, by failing to provide her with a legal therapeutic abortion, and as regards the State ’ s positive obligations, by the absence of a comprehensive legal framework to guarantee her rights. Article 8 of the Convention, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1. The parties ’ submissions ( a ) The Government 68. The Government first emphasised that pregnancy and its interruption did not, as a matter of principle, pertain uniquely to the sphere of the mother ’ s private life. Whenever a woman was pregnant, her private life became closely connected with the developing foetus. There could be no doubt that certain interests relating to pregnancy were legally protected ( see Brüggemann and Scheuten v. Germany, no. 6959/75, Commission ’ s report of 12 July 1977, Decisions and Reports ( DR ) 10, p. 100). Polish law also protected the foetus and therefore allowed for termination of a pregnancy under the 1993 Act only in strictly defined circumstances. The Government were of the view that, in the applicant ’ s case, the conditions for lawful termination on health grounds as defined by that Act had not been satisfied. 69. The Government argued that in so far as the applicant had submitted that her pregnancy had posed a threat to her eyesight because of her severe myopia, only a specialist in ophthalmology could decide whether an abortion was medically advisable. The ophthalmologists who had examined the applicant during her pregnancy had not considered that her pregnancy and delivery constituted any threat to her health or life. The intention of the doctors had actually been to protect the applicant ’ s health. They had concurred in their opinions that the applicant ’ s child should be delivered by Caesarean section, which had ultimately happened. 70. The Government stressed that there existed a delivery possibility which had not posed any threat to the applicant ’ s health. Hence, under the 1993 Act the doctors had not been authorised to issue a medical certificate permitting abortion. Consequently, the applicant had been unable to obtain an abortion as her situation had not complied with the conditions laid down by that Act. 71. In so far as the applicant argued that no procedure was available under the Polish law to assess the advisability of a therapeutic abortion, the Government disagreed. They referred to the provisions of the Minister of Health ’ s Ordinance of 22 January 1997 and argued that this Ordinance provided for a procedure governing decisions on access to a therapeutic abortion. 72. The Government further stated that section 37 of the 1996 Medical Profession Act made it possible for a patient to have a decision taken by a doctor as to the advisability of an abortion reviewed by his or her colleagues. Lastly, had the applicant been dissatisfied with decisions given in her case by the doctors, she could have availed herself of the possibilities provided for by administrative law. 73. The Government concluded that it was open to the applicant to challenge the medical decisions given in her case by having recourse to procedures available under the law. ( b ) The applicant 74. The applicant disagreed with the Government ’ s argument that, under the case ‑ law of the Convention institutions, the legal protection of life afforded by Article 2 extended to foetuses. Under that case-law, “[t]he life of the foetus [ was ] intimately connected with, and [ could not ] be regarded in isolation of, the life of the pregnant woman” ( see X. v. the United Kingdom, no. 8416/79, Commission decision of 13 May 1980, DR 19, p. 244). The Court itself had observed that legislative provisions as to when life commenced fell within the State ’ s margin of appreciation, but it had rejected suggestions that the Convention ensured such protection. It had noted that the issue of such protection was not resolved within the majority of the Contracting States themselves and that there was no European consensus on the scientific and legal definition of the beginning of life ( see Vo v. France [GC], no. 53924/00, § 82, ECHR 2004 ‑ VIII ). 75. The applicant complained that the facts of the case had given rise to a breach of Article 8 of the Convention. As to the applicability of this provision, the applicant emphasised that the facts underlying the application had concerned a matter of “private life”, a concept which covered the physical and moral integrity of the person ( see X and Y v. the Netherlands, cited above, § 22). 76. The applicant argued that in the circumstances of the present case her Article 8 rights had been violated both substantively, by failing to provide her with a legal abortion, and with respect to the State ’ s positive obligations, by the absence of a comprehensive legal framework to guarantee her rights by appropriate procedural means. 77. As to the first limb of this complaint, the applicant argued that the very special facts of this case had given rise to a violation of Article 8. She had been seeking to have an abortion in the face of a risk to her health. The refusal to terminate the pregnancy had exposed her to a serious health risk and amounted to a violation of her right to respect for her private life. 78. The applicant countered the Government ’ s suggestion that her condition had not been such as to meet the requirements for a lawful abortion on the medical grounds set forth in section 4 a of the 1993 Act, in that it had not been established that the deterioration of her vision after the delivery had been a direct result of the pregnancy and birth. She stressed that this issue had, in any event, been irrelevant for the assessment of the case because the 1993 Act provided that it was merely the threat to the pregnant woman ’ s health which made an abortion legal. The actual materialisation of such a threat was not required. In any event, and regrettably, in the applicant ’ s case this threat had materialised and brought about a severe deterioration of her eyesight after the delivery. 79. The applicant further emphasised that the interference complained of had not been “ in accordance with the law ” within the meaning of Article 8 of the Convention. Section 4 a of the 1993 Act allowed a termination where the continuation of a pregnancy constituted a threat to the mother ’ s life or health. Hence, the applicant had had a legal right under Polish law to have an abortion on health grounds. 80. As to the second limb of her complaint, relating to the positive obligations of the State, the applicant considered that the facts of the case had disclosed a breach of the right to effective respect for her private life. The State had been under a positive obligation to provide a comprehensive legal framework regulating disputes between pregnant women and doctors as to the need to terminate a pregnancy in cases of a threat to a woman ’ s health. However, there was no effective institutional and procedural mechanism by which such cases were to be adjudicated and resolved in practice. 81. The applicant emphasised that the need for such a mechanism had been and remained acute. The provisions of the 1997 Ordinance and of the 1996 Medical Profession Act, relied on by the Government, had not provided clarity because all these provisions had been drafted in the broadest terms. They provided that doctors could make referrals for therapeutic abortion, but gave no details as to how that process worked or within what time frame. Critically, there had been no provision for any meaningful review of, or scope for challenge of, a doctor ’ s decision not to make a referral for termination. 82. The applicant further stressed that section 4 a of the 1993 Act, in so far as it contained an exemption from the rule that abortion was prohibited, related to a very sensitive area of medical practice. Doctors were hesitant to perform abortions necessary to protect the health of a woman because of the highly charged nature of the abortion debate in Poland. Furthermore, they feared damage to their reputation if it was found out that they had performed a termination in circumstances provided for under section 4 a. They might also fear criminal prosecution. 83. The applicant argued that as a result of the State ’ s failure to put in place at least some rudimentary decision-making procedure, the process in her case had not been fair and had not afforded due respect for her private life and her physical and moral integrity. 84. The applicant submitted that the onus was on the State to ensure that medical services required by pregnant women and available in law were available in practice. The legal system in Poland, viewed as a whole, had been operating with the opposite effect, offering a strong disincentive to the medical profession to provide the abortion services that were available in law. The flexibility that the law appeared to afford in determining what constituted a “ threat to a woman ’ s health ” within the meaning of section 4 a of the 1993 Act and the lack of adequate procedures and scrutiny contrasted with the strict approach under the criminal law penalising doctors for carrying out unlawful abortions. 85. The applicant contended that in the present case where there had been a fundamental disagreement between her, a pregnant woman fearful of losing her eyesight as a result of a third delivery, and doctors, it had been inappropriate and unreasonable to leave the task of balancing fundamental rights to doctors exclusively. In the absence of any provision for a fair and independent review, given the vulnerability of women in such circumstances, doctors would practically always be in a position to impose their views on access to termination, despite the paramount importance their decisions have for a woman ’ s private life. The circumstances of the case revealed the existence of an underlying systemic failure of the Polish legal system when it came to determining whether or not the conditions for lawful abortion obtained in a particular case. 2. The third- party interveners ’ submissions ( a ) The Center for Reproductive Rights 86. The Center for Reproductive Rights submitted, in its comments to the Court of 23 September 2005, that the central issue in the present case was whether a State Party which had by law afforded women a right to choose abortion in cases where pregnancy threatened their physical health, but failed to take effective legal and policy steps to ensure that eligible women who made that choice could exercise their right, violated its obligations under Article 8 of the Convention. It was of the opinion that States undertaking to allow abortion in prescribed circumstances have a corresponding obligation to ensure that the textual guarantee of abortion in their national laws is an effective right in practice. To that end, States should take effective steps to ensure women ’ s effective access to services. These steps include the institution of procedures for appeal or review of medical decisions denying a woman ’ s request for abortion. 87. Poland ’ s lack of effective legal and administrative mechanisms providing for appeal or review of medical professionals ’ decisions in cases where they determine that the conditions for termination of pregnancy have not been met were inconsistent with the practice of many other member States. The establishment of an appeals or review process in countries across Europe, such as Bulgaria, Croatia, the Czech Republic, Denmark, Finland, Norway, Slovakia, Slovenia or Sweden, reflected a common understanding of the need to protect women ’ s right to legal abortion in situations where a health- care provider denies such a request, including in cases where a woman ’ s health was at risk. 88. Most laws and regulations on abortion appeals processes had strict time ‑ limits within which such appeals and reviews had to be decided, recognising the inherent time-sensitive nature of abortion procedures and the inability of regular administrative review or other legal processes to respond in a timely manner. While such time limitations implicitly obliged the medical professional denying the request for abortion to forward medical records of a woman immediately to the review or appeals body, some laws had explicit language requiring doctors to do so. In certain countries the appeals or review body had to inform the woman where the abortion would be performed should her appeal be granted. Where an appeal or review body found that the conditions for a termination of pregnancy had not been met, some laws required a written notice to the woman of the decision. In all countries, appeals procedures did not need to be followed when pregnancy posed a threat to the health or life of the pregnant woman. In certain member States, such as Norway and Sweden, a rejected request for abortion was automatically examined by a review body. In Norway, a committee was formed by the county medical officer, which also includes the pregnant woman. 89. They indicated that the legislation of many member States contained express language underscoring a woman ’ s rights to dignity and autonomous decision ‑ making within the context of requests for and provision of abortion services. They referred to Norwegian and French legislation which strongly emphasised the woman ’ s autonomy and active participation throughout the process in which access to abortion was decided. 90. They concluded that in Poland the lack of a timely appeals process undermined women ’ s right to have access to reproductive health care, with potentially grave consequences for their life and health. It also denied women the right to an effective remedy as guaranteed by Article 13 of the Convention. ( b ) The Polish Federation for Women and Family Planning and the Polish Helsinki Foundation for Human Rights 91. The Polish Federation for Women and Family Planning and the Polish Helsinki Foundation for Human Rights stated, in their submissions of 6 October 2005, that the case essentially concerned the issue of inadequate access to therapeutic abortion which was permissible when one of the conditions enumerated in section 4 a of the 1993 Act was met. They emphasised that it often happened in practice in Poland that physicians refused to issue a certificate required for a therapeutic abortion, even when there were genuine grounds for issuing one. It was also often the case that when a woman obtained a certificate, the physicians to whom she went to obtain an abortion questioned its validity and the competence of the physicians who issued it and eventually refused the service, sometimes after the time-limit for obtaining a legal abortion set by law had expired. 92. The fact that under Polish law abortion was essentially a criminal offence, in the absence of transparent and clearly defined procedures by which it had to be established that a therapeutic abortion could be performed, was one of the factors deterring physicians from having recourse to this medical procedure. Hence, the chances of negative decisions in respect of therapeutic abortion were high. 93. There were no guidelines as to what constituted a “ threat to a woman ’ s health or life ” within the meaning of section 4 a. It appeared that some physicians did not take account of any threat to a woman ’ s health as long as she was likely to survive the delivery of a child. In addition, there was a problem with assessing whether a pregnancy constituted a threat to a woman ’ s health or life in cases of women suffering from multiple and complex health problems. In such situations it was not clear who should be recognised as a specialist competent to issue the medical certificate referred to in section 2 of the 1997 Ordinance. 94. The Polish law did not foresee effective measures to review refusals of abortion on medical grounds. As a result, women denied an abortion on health grounds did not have any possibility of consulting an independent body or to have such decisions reviewed. 95. To sum up, the current practice in Poland as regards the application of the guarantees provided for by section 4a of the 1993 Act ran counter to the requirements of Article 8 of the Convention. ( c ) The Forum of Polish Women 96. The Forum of Polish Women argued, in its submissions of 3 November 2005, that the rights guaranteed by Article 8 of the Convention imposed on the State an obligation to refrain from arbitrary interference, but not an obligation to act. This provision of the Convention aimed essentially to protect an individual against arbitrary activities of public authorities ( see Kroon and Others v. the Netherlands, 27 October 199 4, § 31, Series A no. 297 ‑ C ). For that reason alone, it was not possible to derive from this provision an obligation to have medical interventions performed, in particular when the medical intervention consisted of abortion. 97. It further asserted that in the context of abortion it could not be said that pregnancy belonged exclusively to the sphere of private life. Even assuming that the legal issues involved in pregnancy could be assessed under Article 8 of the Convention, the States could enact legal restrictions in the private sphere if such restrictions served the aim of protecting morals or the rights and freedoms of others. In the hitherto interpretation of this provision, the Court had not challenged the view that the rights of the foetus should be protected by the Convention. 98. In particular, the Court had not ruled out the possibility that in certain circumstances safeguards could be extended to the unborn child (see Vo, cited above, § 85). The Polish legal system ensured constitutional protection of the life of the foetus, based on the concept that a human life has to be legally protected at all stages of development. The 1993 Act accepted exceptions to this principle of legal protection of human life from the moment of conception. 99. However, contrary to the applicant ’ s arguments, under the applicable Polish legislation, there was no right to have an abortion, even when exceptions from the general prohibition on abortion provided by section 4 a of the 1993 Act were concerned. This provision had not conferred on a pregnant woman any right to abortion, but only abrogated the general unlawfulness of abortion under Polish law in situations of conflict between the foetus ’ s right to life and other interests. In any event, the mere fact that abortion was lawful in certain situations, as an exception to a general principle, did not justify a conclusion that it was a solution preferred by the State. 100. The intervener further argued that under the 1997 Ordinance the determination of the conditions in which abortion on medical grounds could be performed was left to medical professionals. Circumstances indicating that pregnancy constituted a threat to a woman ’ s life or health had to be attested by a consultant specialising in the field of medicine relevant to the woman ’ s condition. However, a gynaecologist could refuse to perform an abortion on grounds of conscience. Therefore, a patient could not bring a doctor to justice for refusing to perform an abortion and hold him or her responsible for a deterioration in her health after the delivery. 101. Finally, it was of the view that a threat of the deterioration of a pregnant woman ’ s health resulting from pregnancy could not be concluded retrospectively if it had occurred after the birth of a child. ( d ) The Association of Catholic Families 102. The Association of Catholic Families argued, in its observations of 20 December 2005, that the applicant had erred in law in her contention that the Convention guaranteed a right to abortion. In fact, the Convention did not guarantee such a right. On the contrary, Article 2 guaranteed the right to life, which was an inalienable attribute of human beings and formed the supreme value in the hierarchy of human rights. Further, the Court in its case ‑ law opposed the right to life to any hypothetical right to terminate life ( see Pretty v. the United Kingdom, no. 2346/02, ECHR 2002 ‑ III). 3. The Court ’ s assessment ( a ) The scope of the case 103. The Court notes that in its decision on admissibility of 7 February 2006, it declared admissible the applicant ’ s complaints under Articles 3, 8, 13, and 14 taken in conjunction with Article 8. Thus, the scope of the case before the Court is limited to the complaints which it has already declared admissible (see, among many authorities, Sokur v. Ukraine, no. 29439/02, § 25, 26 April 2005). 104. In this context, the Court observes that the applicable Polish law, the 1993 Act, while prohibiting abortion, provides for certain exceptions. In particular, under section 4a ( 1 ) 1 of that Act, abortion is lawful where pregnancy poses a threat to the woman ’ s life or health, as certified by two medical certificates, irrespective of the stage reached in pregnancy. Hence, it is not the Court ’ s task in the present case to examine whether the Convention guarantees a right to have an abortion. ( b ) Applicability of Article 8 of the Convention 105. The Court first observes that it is not disputed between the parties that Article 8 is applicable to the circumstances of the case and that it relates to the applicant ’ s right to respect for her private life. 106. The Court agrees. It first reiterates that legislation regulating the interruption of pregnancy touches upon the sphere of private life, since whenever a woman is pregnant her private life becomes closely connected with the developing foetus ( see Brüggemann and Scheuten, cited above, Commission ’ s report, p. 100 ). 107. The Court also reiterates that “private life” is a broad term, encompassing, inter alia, aspects of an individual ’ s physical and social identity, including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world (see, among many other authorities, Pretty, cited above, § 61). Furthermore, while the Convention does not guarantee as such a right to any specific level of medical care, the Court has previously held that private life includes a person ’ s physical and psychological integrity and that the State is also under a positive obligation to secure to its citizens their right to effective respect for this integrity ( see Glass v. the United Kingdom, no. 61827/00, §§ 74-83, ECHR 2004 ‑ II; Sentges v. the Netherlands (dec.) no. 27677/02, 8 July 2003; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-I; Nitecki v. Poland (dec.), no. 656 53/01, 21 March 2002; and, mutatis mutandis, Odièvre v. France [GC], no. 42326/98, ECHR 2003 ‑ III). The Court notes that in the case before it a particular combination of different aspects of private life is concerned. While the State regulations on abortion relate to the traditional balancing of privacy and the public interest, they must – in case of a therapeutic abortion – also be assessed against the positive obligations of the State to secure the physical integrity of mothers ‑ to ‑ be. 108. The Court finally observes that the applicant submitted that the refusal of an abortion had also amounted to an interference with her rights guaranteed by Article 8. However, the Court is of the view that the circumstances of the applicant ’ s case and in particular the nature of her complaint are more appropriately examined from the standpoint of the respondent State ’ s above-mentioned positive obligations alone. ( c ) General principles 109. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and in particular that it is proportionate to one of the legitimate aims pursued by the authorities (see, for example, Olsson v. Sweden ( no. 1), 24 March 1988, § 67, Series A no. 130 ). 110. In addition, there may also be positive obligations inherent in an effective “respect” for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific measures (see, among other authorities, X and Y v. the Netherlands, cited above, § 23 ). 111. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both the negative and positive contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts, the State enjoys a certain margin of appreciation (see, among other authorities, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290, and Różański v. Poland, no. 55339/00, § 61, 18 May 2006). 112. The Court observes that the notion of “respect” is not clear cut, especially as far as those positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case. Nonetheless, for the assessment of positive obligations of the State it must be borne in mind that the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 ‑ II; Carbonara and Ventura v. Italy, no. 24638/94, § 63, ECHR 2000 ‑ VI; and Capital Bank AD v. Bulgaria, no. 49429/99, § 133, 24 November 2005 ). Compliance with requirements imposed by the rule of law presupposes that the rules of domestic law must provide a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82, and, more recently, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000 ‑ XI). 113. Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32 ). While Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision ‑ making process is fair and such as to afford due respect to the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests ( see, mutatis mutandis, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 99, ECHR 2003 ‑ VIII). ( d ) Compliance with Article 8 of the Convention 114. When examining the circumstances of the present case, the Court must have regard to its general context. It notes that the 1993 Act prohibits abortion in Poland, providing only for certain exceptions. A doctor who terminates a pregnancy in breach of the conditions specified in that Act is guilty of a criminal offence punishable by up to three years ’ imprisonment (see paragraph 4 1 above). According to the Polish Federation for Women and Family Planning, the fact that abortion was essentially a criminal offence deterred physicians from authorising an abortion, in particular in the absence of transparent and clearly defined procedures determining whether the legal conditions for a therapeutic abortion were met in an individual case. 115. The Court also notes that in its fifth periodic report to the ICCPR Committee, the Polish government acknowledged, inter alia, that there had been deficiencies in the manner in which the 1993 Act had been applied in practice (see paragraph 49 above). This further highlights, in the Court ’ s view, the importance of procedural safeguards regarding access to a therapeutic abortion as guaranteed by the 1993 Act. 116. A need for such safeguards becomes all the more relevant in a situation where a disagreement arises as to whether the preconditions for a legal abortion are satisfied in a given case, either between the pregnant woman and her doctors, or between the doctors themselves. In the Court ’ s view, in such situations the applicable legal provisions must, first and foremost, ensure clarity of the pregnant woman ’ s legal position. The Court further notes that the legal prohibition on abortion, taken together with the risk of their incurring criminal responsibility under Article 156 § 1 of the Criminal Code, can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case. The provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this effect. Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it. 117. In this connection, the Court reiterates that the concepts of lawfulness and the rule of law in a democratic society command that measures affecting fundamental human rights be, in certain cases, subject to some form of procedure before an independent body competent to review the reasons for the measures and the relevant evidence (see, among other authorities, Rotaru v. Romania [GC], no. 28341/95, §§ 55-63, ECHR 2000 ‑ V ). In ascertaining whether this condition has been satisfied, a comprehensive view must be taken of the applicable procedures ( see AGOSI v. the United Kingdom, 24 October 1986, § 55, Series A no. 108, and, mutatis mutandis, Jokela v. Finland, no. 28856/95, § 45, ECHR 2002 ‑ IV). In circumstances such as those in issue in the instant case, such a procedure should guarantee to a pregnant woman at least the possibility to be heard in person and to have her views considered. The competent body should also issue written grounds for its decision. 118. In this connection the Court observes that the very nature of the issues involved in decisions to terminate a pregnancy is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are timely so as to limit or prevent damage to a woman ’ s health which might be occasioned by a late abortion. Procedures in which decisions concerning the availability of lawful abortion are reviewed post factum cannot fulfil such a function. In the Court ’ s view, the absence of such preventive procedures in the domestic law can be said to amount to the failure of the State to comply with its positive obligations under Article 8 of the Convention. 119. Against this general background, the Court observes that it is not in dispute that the applicant suffered from severe myopia from 1977. Even before her pregnancy she had been officially certified as suffering from a disability of medium severity (see paragraph 8 above). Having regard to her condition, during her third pregnancy the applicant sought medical advice. The Court observes that a disagreement arose between her doctors as to how the pregnancy and delivery might affect her already fragile vision. The advice given by the two ophthalmologists was inconclusive as to the possible impact of the pregnancy on the applicant ’ s condition. The Court also notes that the GP issued a certificate stating that her pregnancy constituted a threat to her health, while a gynaecologist was of a contrary view. The Court stresses that it is not its function to question the doctors ’ clinical judgment as regards the seriousness of the applicant ’ s condition ( see, mutatis mutandis, Glass, cited above, § 87). Nor would it be appropriate to speculate, on the basis of the medical information submitted to it, on whether their conclusions as to whether her pregnancy would or would not lead to a deterioration of her eyesight in the future were correct. It is sufficient to note that the applicant feared that the pregnancy and delivery might further endanger her eyesight. In the light of the medical advice she obtained during the pregnancy and, significantly, the applicant ’ s condition at that time, taken together with her medical history, the Court is of the view that her fears cannot be said to have been irrational. 120. The Court has examined how the legal framework regulating the availability of a therapeutic abortion in Polish law was applied to the applicant ’ s case and how it addressed her concerns about the possible negative impact of pregnancy and delivery on her health. 121. The Court notes that the Government referred to the Ordinance of the Minister of Health of 22 January 1997 (see paragraph 71 above). However, the Court observes that this Ordinance only stipulated the professional qualifications of doctors who could perform a legal abortion. It also made it necessary for a woman seeking an abortion on health grounds to obtain a certificate from a physician “specialising in the field of medicine relevant to [her] condition”. The Court notes that the 1997 Ordinance provides for a relatively simple procedure for obtaining a lawful abortion based on medical considerations: two concurring opinions of specialists other than the doctor who would perform an abortion are sufficient. Such a procedure allows for taking relevant measures promptly and does not differ substantially from solutions adopted in certain other member States. However, the Ordinance does not distinguish between situations in which there is full agreement between the pregnant woman and the doctors – where such a procedure is clearly practicable – and cases where disagreement arises between the pregnant woman and her doctors, or between the doctors themselves. The Ordinance does not provide for any particular procedural framework to address and resolve such controversies. It only obliges a woman to obtain a certificate from a specialist, without specifying any steps that she could take if her opinion and that of the specialist diverged. 122. It is further noted that the Government referred also to section 37 of the 1996 Medical Profession Act (see paragraph 72 above). This provision makes it possible for a doctor, in the event of any diagnostic or therapeutic doubts, or upon a patient ’ s request, to obtain a second opinion of a colleague. However, the Court notes that this provision is addressed to members of the medical profession. It only specifies the conditions in which they could obtain a second opinion of a colleague on a diagnosis or on the treatment to be followed in an individual case. The Court emphasises that this provision does not create any procedural guarantee for a patient to obtain such an opinion or to contest it in the event of disagreement. Nor does it specifically address the situation of a pregnant woman seeking a lawful abortion. 123. In this connection, the Court notes that in certain State Parties various procedural and institutional mechanisms have been put in place in connection with the implementation of legislation specifying the conditions governing access to a lawful abortion (see paragraphs 86 ‑ 87 above). 124. The Court concludes that it has not been demonstrated that Polish law as applied to the applicant ’ s case contained any effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met in her case. It created for the applicant a situation of prolonged uncertainty. As a result, the applicant suffered severe distress and anguish when contemplating the possible negative consequences of her pregnancy and upcoming delivery for her health. 125. The Court is further of the opinion that the provisions of the civil law on tort as applied by the Polish courts did not afford the applicant a procedural instrument by which she could have vindicated her right to respect for her private life. The civil- law remedy was solely of a retroactive and compensatory character. It could only, if the applicant had been successful, have resulted in the courts granting damages to cover the irreparable damage to her health which had come to light after the delivery. 126. The Court further notes that the applicant requested that criminal proceedings against Dr R.D. be instituted, alleging that he had exposed her to grievous bodily harm by his refusal to terminate her pregnancy. The Court first observes that for the purposes of criminal responsibility it was necessary to establish a direct causal link between the acts complained of – in the present case, the refusal of an abortion – and the serious deterioration of the applicant ’ s health. Consequently, the examination of whether there was a causal link between the refusal of leave to have an abortion and the subsequent deterioration of the applicant ’ s eyesight did not concern the question whether the pregnancy had constituted a “threat” to her health within the meaning of section 4 a of the 1993 Act. Crucially, the examination of the circumstances of the case in the context of criminal investigations could not have prevented the damage to the applicant ’ s health from arising. The same applies to disciplinary proceedings before the organs of the Chamber of Physicians. 127. The Court finds that such retrospective measures alone are not sufficient to provide appropriate protection for the physical integrity of individuals in such a vulnerable position as the applicant ( see Storck v. Germany, no. 61603/00, § 150, ECHR 2005 ‑ V ). 128. Having regard to the circumstances of the case as a whole, it cannot therefore be said that, by putting in place legal remedies which make it possible to establish liability on the part of medical staff, the Polish State complied with the positive obligations to safeguard the applicant ’ s right to respect for her private life in the context of a controversy as to whether she was entitled to a therapeutic abortion. 129. The Court therefore dismisses the Government ’ s preliminary objection and concludes that the authorities failed to comply with their positive obligations to secure to the applicant the effective respect for her private life. 130. The Court concludes that there has been a breach of Article 8 of the Convention. C. Alleged violation of Article 13 of the Convention 131. The applicant complained that the facts of the case gave rise to a breach of Article 13 of the Convention. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 132. The Government submitted that Polish law provided for a procedure governing medical decisions concerning abortion on medical grounds. They referred to the 1993 Act and to the Ordinance of the Minister of Health of 22 January 1997. They further referred to section 37 of the 1996 Medical Profession Act. They argued that it provided for the possibility of reviewing a therapeutic decision taken by a specialist. 133. The applicant submitted that the Polish legal framework governing the termination of pregnancy had proved to be inadequate. It had failed to provide her with reasonable procedural protection to safeguard her rights guaranteed by Article 8 of the Convention. 134. Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131 ). In the present case, there has been a finding of a violation of Article 8, and the complaint under Article 13 must therefore be considered. 135. However, the Court observes that the applicant ’ s complaint about the State ’ s failure to put in place an adequate legal framework allowing for the determination of disputes arising in the context of the application of the 1993 Act in so far as it allowed for legal abortion essentially overlaps with the issues which have been examined under Article 8. The Court has found a violation of this provision on account of the State ’ s failure to meet its positive obligations. It holds that no separate issue arises under Article 13 of the Convention. D. Alleged violation of Article 14 of the Convention taken in conjunction with Article 8 136. The applicant complained that the facts of the case gave rise to a breach of Article 14 of the Convention taken in conjunction with Article 8. In her case, Article 8 was applicable and therefore Article 14 could be relied on. Article 14 of the Convention reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 1. The parties ’ submissions (a) The applicant 137. The applicant pointed out that the Court had repeatedly held that the accessory nature of Article 1 4 of the Convention meant that a complaint about discrimination had to fall within the scope of a Convention right. 138. The applicant further argued that she had not been given a meaningful opportunity to participate in the investigations, despite the fact that the prosecuting authorities had been fully aware of the problems with her eyesight. It was her near-blindness which had formed the very basis of her complaint that a criminal offence had been committed. In such a situation, she argued, the failure to provide her with effective access to the documents of the criminal investigation or another form of assistance had prevented her from participating effectively in the proceedings. The applicant was of the view that the investigation carried out by the authorities had been characterised by a number of important failings. Firstly, the first-instance prosecutor had not heard evidence from a crucial witness in the case, namely Dr R.D. Secondly, the prosecutor ’ s decision to discontinue the investigation had relied heavily on the report submitted by three experts from the Białystok Medical Academy. However, this report could not be viewed as reliable as it had been prepared on the basis of a short examination of the applicant by only one of the experts ( an ophthalmologist). The other two experts had limited themselves to an examination of the applicant ’ s medical records. Thirdly, the applicant had effectively been precluded from exercising her procedural rights, such as submitting requests to obtain evidence in support of her complaint. This had been caused by the authorities ’ failure to accommodate in any way the applicant ’ s disability which had prevented her from reading the case file of the investigation. Fourthly, the district prosecutor had not given any consideration to the certificate issued by the GP, Dr O. R. G., and had failed to consider the fact that the doctors had recommended sterilisation to the applicant before the second and third delivery. The applicant submitted that the reasoning of the second ‑ instance prosecutor had failed to address essential arguments which she had raised in her appeal. The authorities had attached little weight to her particular vulnerability as a disabled person suffering from a very severe eyesight impairment bordering on blindness. She maintained that, as a result, she had not been involved in the investigation to a degree sufficient to provide her with the requisite protection of her interests. 139. The applicant concluded that the failure of the authorities to accommodate reasonably her disability during the investigations had amounted to discrimination on the ground of her disability. (b) The Government 140. The Government argued firstly that a violation of substantive rights and freedoms protected by the Convention would first have to be established before a complaint of a violation of Article 14 taken in conjunction with a substantive provision of the Convention could be examined. 141. The Government were further of the view that the investigations of the applicant ’ s complaint that a criminal offence had been committed in connection with the refusal to perform an abortion were conducted with diligence. The prosecutor had questioned all witnesses who could submit evidence relevant to the case. The prosecutor had not interviewed Dr R.D. because he had not considered it necessary in view of the fact that three experts had stated in their opinion that there had been no causal link between the refusal to terminate the pregnancy and the subsequent deterioration of the applicant ’ s eyesight. 142. The Government argued that the decision to discontinue the investigations had been justified since it had been based on that expert opinion. They stressed in this connection that the experts had been acquainted with the applicant ’ s medical records. 143. The Government further submitted that on 6 June 2001 the applicant had been informed by the prosecutor of her rights and obligations as a party to criminal proceedings. Thus, she had known that if she had had any problem examining the case file because of her bad eyesight, she could at any stage of the proceedings have applied for a legal aid lawyer to be assigned to the case. 2. The Court ’ s assessment 144. The Court, having regard to its reasons for finding a violation of Article 8 above and for rejecting the Government ’ s preliminary objection, does not consider it necessary to examine the applicant ’ s complaints separately under Article 14 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 145. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 146. The applicant argued that the outcome of the events complained of had been extremely severe. She had become almost blind and had been officially declared to be significantly disabled. She needed constant care and assistance in her everyday life. She had also been told that her condition was irreversible. The loss of her eyesight had had a devastating effect on her ability to take care of her children and to work. 147. The applicant claimed compensation for pecuniary damage in the amount of 36,000 euros (EUR) (144,000 Polish zlotys (PLN) ). This sum consisted of the estimated future medical expenses she would be obliged to bear in connection with her condition. She estimated her expenditure on adequate medical treatment to be approximately PLN 300 per month. This amount covered regular medical visits, at a cost of approximately PLN 140 per visit, and also medication (including antidepressants) which the applicant was required to take in order to prevent a further deterioration of her condition. The total expenditure has been estimated on the basis of the assumption of a life expectancy of 79 years in Poland as adopted by the World Health Organisation. 148. The applicant further requested the Court to award her compensation in the amount of EUR 40,000 for the non ‑ pecuniary damage she had suffered, which consisted of pain, suffering, distress and anguish she had experienced and continued to experience in connection with the circumstances complained of. 149. The Government were of the view that the applicant had not sustained pecuniary damage in the amount claimed, which was purely speculative and exorbitant. It was impossible to assess the medical expenses, if any, that would be incurred by the applicant in the future. 150. As to the applicant ’ s claim for non ‑ pecuniary damage, the Government submitted that it was excessive and should therefore be rejected. 151. The Court observes that the applicant ’ s claim for pecuniary damage was based on the alleged negative impact on her health suffered as a result of the refusal to terminate the pregnancy. In this connection, it notes that it has found that it cannot speculate on whether the doctors ’ conclusions as to whether the applicant ’ s pregnancy would or would not lead to a future deterioration of her eyesight were correct (see paragraph 11 9 above). Consequently, the Court rejects the applicant ’ s claim for just satisfaction for pecuniary damage. 152. On the other hand, the Court, having regard to the applicant ’ s submissions, is of the view that she must have experienced considerable anguish and suffering, including fear about her physical capacity to take care of another child and to ensure its welfare and happiness, which would not be satisfied by a mere finding of a violation of the Convention. Having regard to the circumstances of the case seen as a whole and deciding on an equitable basis, the Court awards the applicant EUR 25,000 for non ‑ pecuniary damage. B. Costs and expenses 153. The applicant claimed reimbursement of the costs and expenses incurred in the proceedings before the Court. The applicant had instructed two Polish lawyers and two lawyers from Interights, the International Centre for the Legal Protection of Human Rights in London, to represent her before the Court. 154. She argued that it had been well-established in the Court ’ s case ‑ law that costs could reasonably be incurred by more than one lawyer and that an applicant ’ s lawyers could be situated in different jurisdictions ( see Kurt v. Turkey, 25 May 1998, Reports 1998 ‑ III, and Yaşa v. Turkey, 2 September 1998, Reports 1998 ‑ VI ). Certain consequences flow from the involvement of foreign lawyers. The fee levels in their own jurisdiction may be different from those in the respondent State. In Tolstoy Miloslavsky v. the United Kingdom, the Court stated that “given the great differences at present in rates of fees from one Contracting State to another, a uniform approach to the assessment of fees ... does not seem appropriate” ( 13 July 1995, § 77, Series A no. 316 ‑ B). 155. The applicant claimed, with reference to invoices her lawyers had submitted, EUR 10,304 in respect of fees and costs incurred in connection with work carried out by Ms Gąsiorowska and Ms Wilkowska-Landowska. The legal fees, in the amount of EUR 10,050, corresponded to 201 hours spent in preparation of the applicant ’ s submissions in the case, at an hourly rate of EUR 50. The applicant further submitted that the costs incurred in connection with the case, in the amount of EUR 254, consisted of travel expenses and accommodation for Ms Wilkowska -Landowska in connection with the hearing held in the case. The applicant further claimed reimbursement, again with reference to an invoice, of legal fees and costs incurred in connection with work carried out by Ms Coomber and Ms Vandova, in the total amount of EUR 11,136. The legal fees corresponded to 98 hours spent in preparation of the applicant ’ s submissions, at an hourly rate of EUR 103. 60. The total amount of legal fees claimed by the applicant was therefore EUR 21,1 8 6. The applicant relied on invoices of legal fees submitted to the Court. Further costs, in the amount of EUR 959, consisted of travel expenses and accommodation incurred in connection with the hearing held in the case before the Strasbourg Court. 156. The Government requested the Court to decide on the reimbursement of legal costs and expenses only in so far as these costs and expenses were actually and necessarily incurred and were reasonable as to quantum. The Government further submitted that the applicant had not submitted invoices in respect of accommodation costs or travel expenses claimed by her representatives. In any event, the Government were of the view that the amounts claimed by the applicant were exorbitant, bearing in mind the costs awarded by the Court in similar cases. 157. The Government also requested the Court to assess whether it was reasonable for the applicant to receive reimbursement of legal costs and expenses borne by four lawyers. 158. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000 ‑ IX). In the light of the documents submitted, the Court is satisfied that the legal costs concerned in the present case have actually been incurred. 159. As to the amounts concerned, the Court first points out that it has already held that the use of more than one lawyer may sometimes be justified by the importance of the issues raised in a case (see, among many other authorities, The Sunday Times v. the United Kingdom ( Article 50), 6 November 1980, § 30, Series A no. 38 ). The Court notes, in this connection, that the issues involved in the present case have given rise to a heated and ongoing legal debate in Poland. It further refers to its finding in its admissibility decision that the issues linked to the exhaustion of domestic remedies were complex enough to be examined together with the merits of the case (see paragraph 61 above). It is also relevant to note in this connection the scarcity of relevant case-law of the Polish courts. The Court is further of the view that the Convention issues involved in the case were also of considerable novelty and complexity. 160. On the whole, having regard both to the national and the Convention law aspects of the case, the Court is of the opinion that they justified recourse to four lawyers. 161. On the other hand, while acknowledging the complexity of the case, the Court is however not persuaded that the number of hours ’ work claimed by the applicant can be said to be a fair reflection of the time actually required to address the issues raised by the case. As to the hourly rates claimed, the Court is of the view that they are consistent with domestic practice in both jurisdictions where the lawyers representing the applicant practise and cannot be considered excessive. 162. However, the Court notes that all four lawyers attended the hearing before the Court. It does not consider that this part of the expenses can be said to have been “necessarily” incurred, given that the applicant had been granted legal aid for the purpose of the proceedings before the Court. 163. The Court, deciding on an equitable basis and having regard to the details of the claims submitted, awards the applicant a global sum of EUR 14,000 in respect of fees and expenses. This amount is inclusive of any value-added tax which may be chargeable, less the amount of EUR 2,442.91 paid to the applicant by the Council of Europe in legal aid. C. Default interest 164. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The European Court of Human Rights found that the applicant had been denied access to an effective mechanism capable of determining whether the conditions for obtaining a legal abortion had been met, in violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. |
1,056 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Revenue ’ s right of pre-emption 20. At the time of the pre-emption in question, Article 668 of the General Tax Code provided: "Without prejudice to the provisions of Article 1649 quinquies A and for a period of six months from the date on which the formality of registration for tax purposes or the combined formality [simultaneous registration for tax purposes and entry in the land charges register] is completed, the Revenue may exercise for the benefit of the Treasury a right of pre-emption over real property, real-property rights, businesses or goodwill, rights to leases or to the benefit of a promise of a lease of all or part of a property where it considers the sale price to be too low, by offering to pay the rightful claimants the price in question and a premium of ten per cent. The six-month period shall be reduced to three months where the formality is completed at the office for the area in which the property is situated. The decision to exercise the right of pre-emption shall be served by a bailiff." 21. On 1 January 1982 Article 668 became Article L.18 of the Tax Proceedings Code and now provides: "For a period of six months from the date of registration for tax purposes or the date on which the combined formality [simultaneous registration for tax purposes and entry in the land charges register] is completed, the State, represented by the Revenue, may exercise a right of pre-emption over real property, real-property rights, businesses or goodwill, rights to leases or to the benefit of a promise of a lease of all or part of a property where the Revenue considers the sale price to be too low, by offering to pay the purchaser or his successors in title the price in question and a premium of ten per cent. The six-month period shall be reduced to three months where the formality is completed at the office for the area in which the property is situated. The decision to exercise the right of pre-emption shall be served on the purchaser, vendor or their successors in title by a bailiff. The exercise of this right shall not prejudice the Revenue ’ s right to bring, where appropriate, adversarial supplementary assessment proceedings as provided for in Article L.55." 22. The administrative decision to exercise the right of pre-emption provided for in this Article must - so it is stated in the Prime Minister ’ s circular of 10 January 1980 - contain reasons in accordance with Law no. 79-587 of 11 July 1979, which came into force on 11 January 1980 and whose relevant sections provide: Section 1 "Natural or legal persons shall have the right to be informed without delay of the reasons for unfavourable individual administrative decisions concerning them. To this end, reasons must be given for decisions which: (a) restrain the exercise of civil liberties or generally amount to a policing measure; (b) impose a penalty; (c) make the grant of an authorisation subject to restrictive conditions or impose obligations; (d) withdraw or rescind decisions creating rights; (e) assert prescription, an estoppel or a forfeiture; (f) refuse a benefit to which persons who satisfy the statutory conditions for receiving it are entitled." Section 3 "The reasons required by this Law must be in writing and include a statement of the considerations of law and fact on which the decision is based." B. The extent of review by the courts 23. Jurisdiction to hear appeals against pre-emption decisions under Article 668 of the General Tax Code is vested in the ordinary courts. Firstly, in a judgment of 22 December 1950 ( Dalloz 1951, jurisprudence, p. 547) the Conseil d ’ Etat held that it had no jurisdiction, stating that "by reason of the serious interference with the right of ownership which the power granted to the Revenue ... to exercise a right of pre-emption over sold real property entails ..., it is for the ordinary courts ... to deal with cases concerning the right of pre-emption". Secondly, the ordinary courts have agreed to rule on challenges to pre-emption decisions. They initially reviewed only the formal correctness of pre-emption decisions (Lyons Court of Appeal, judgment of 14 April 1947, Gazette du Palais 1947, 2, 48). Subsequently they extended their review so as to satisfy themselves that pre- emptions had not had a speculative purpose and that they did not disclose any misuse of powers (Court of Cassation, Commercial Division, Lucan judgments of 5 February 1957, Juris-Classeur périodique 1957, I, 9875 and 9876). Having regard to the discretionary nature of the right of pre-emption, the Court of Cassation held, however, that the courts could not review the Revenue ’ s assessment that a declared price was too low. In its four leading judgments delivered on 16 June 1987 (see paragraph 18 above) the Court of Cassation considerably widened the scope of judicial review. Explicitly abandoning its earlier view of the discretionary nature of the right of pre-emption, it held that the reasons given for decisions to exercise the right must be in writing and contain a statement of the considerations of law and fact on which the decisions were based. It concluded from this that reasoning which stated only "the Revenue considers the sale price to be too low" was inadequate as it was too summary and too general, the Revenue being required to specify the facts on which it based its assessment that the stipulated sale price was too low, in order to enable a dispossessed purchaser to challenge the assessment and establish that the agreed price corresponded to the real market value of the property. In two of these cases the Court of Cassation quashed the impugned judgments for having contravened the provisions thus construed; in the other two, including the case of the applicant and her husband, it dismissed the appeals. The applicant and her husband were the only dispossessed purchasers who did not win their case in the Court of Cassation. C. Pre-emption in practice 24. In 1980 the Revenue exercised its right of pre-emption only once in the département of Bas- Rhin - against the applicant and her husband - and twenty-five times in the rest of France. Between 1980 and 1986 it carried out eighty-eight operations of this kind. Since the judgments of 1987 (see paragraph 18 above) it has refrained from resorting to pre-emption. PROCEEDINGS BEFORE THE COMMISSION 25. Mrs Hentrich applied to the Commission on 14 December 1987. In her submission, the exercise of the right of pre-emption had been an unjustified interference with her right of property, in breach of Article 1 of Protocol No. 1 (P1-1). It had raised a presumption that she was guilty of tax evasion, contrary to Article 6 para. 2 (art. 6-2) of the Convention. She had been denied the benefit of the right of access to a court that would give her a fair trial within a reasonable time, in disregard of Articles 6 and 13 (art. 6, art. 13) of the Convention. Lastly, she submitted that there had been discriminatory treatment, contrary to Article 14 (art. 14) of the Convention, in the enjoyment of the rights secured in the aforementioned provisions. 26. The Commission declared the application (no. 13616/88) admissible on 5 December 1991. In its report of 4 May 1993 (Article 31) (art. 31), it expressed the opinion that (a) there had been a violation of Article 1 of Protocol No. 1 (P1-1) (twelve votes to one); (b) there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention as regards the fairness and length of the proceedings (twelve votes to one); (c) there had been no violation of Articles 6 para. 2 and 14 (art. 6-2, art. 14) of the Convention (twelve votes to one); and (d) it was unnecessary to examine separately the complaint based on Article 13 (art. 13) of the Convention (unanimously). The full text of the Commission ’ s opinion and of the four partly dissenting opinions contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT 27. In their memorial the Government asked the Court to "dismiss the application lodged by Mrs Hentrich by holding that the complaints based on breaches of Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1 (art. 6-1, P1-1) are inadmissible for failure to exhaust domestic remedies or, in the alternative, that they are unfounded; that Article 6 para. 2 (art. 6-2) of the Convention is not applicable in this case or, in the alternative, that the complaint based on it is ill-founded; that the complaint based on the failure to try the case within a reasonable time is unfounded; and, lastly, that the complaints based on breaches of Articles 13 and 14 (art. 13, art. 14) of the Convention are unfounded". AS TO THE LAW I. INTRODUCTION 28. Essentially, Mrs Hentrich claimed to be the victim of a violation of Article 1 of Protocol No. 1 (P1-1) on account of the Revenue ’ s exercise of the right of pre-emption conferred on it by Article 668 of the General Tax Code. She also maintained that the national proceedings had not afforded her an adequate opportunity to present her case to the French courts, contrary to Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention. II. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS 29. As they had done before the Commission, the Government submitted that domestic remedies had not been exhausted. The first limb of the second ground of appeal in the Court of Cassation, they said, mentioned Article 1 of Protocol No. 1 (P1-1) but did not refer to public interest or to the proportionality of the interference. Its thrust was to impugn Article 668 of the General Tax Code in that it did not allow a dispossessed purchaser to show his good faith, not to argue that the right of pre-emption infringed the right of individuals to the peaceful enjoyment of their possessions. Furthermore, Mrs Hentrich had not put the Court of Cassation in a position to remedy the shortcomings of the national proceedings, since she had not alleged before it that Law no. 79-587 of 11 July 1979 had been contravened. 30. The Court points out, firstly, that Article 26 (art. 26) of the Convention must be applied "with some degree of flexibility and without excessive formalism" (see the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 19, para. 27). It notes, like the Commission, that at all stages of the national proceedings the applicant expressly relied on the relevant provisions of the Convention and indicated to the domestic courts in substance the complaints now made at Strasbourg. 31. As regards the applicant ’ s submissions based on the incompatibility of Article 668 of the General Tax Code with Article 1 of Protocol No. 1 (P1-1), the Court notes that these were not new complaints as Mrs Hentrich confined herself before the Convention institutions to developing the argument already considered by the French courts, namely that Article 668 did not comply with, inter alia, the provisions of Article 1 of Protocol No. 1 P1-1). 32. As regards the complaints relating to the proceedings, the applicant admittedly did not rely on Law no. 79-587 in the Court of Cassation as she had done in the Court of Appeal. It cannot be overlooked, however, that the Colmar Court of Appeal (see paragraph 15 above), like others at the time, had adopted the restrictive approach that had been taken up to then by the Court of Cassation. The applicant ’ s omission could therefore only justify this limb of the objection if the Government had persuaded the Court that at the time of the appeal on points of law an allegation that the Law in question had been contravened would have afforded a prospect of success such that there was an effective remedy. The Government, however, did not cite a single contemporaneous decision of the Court of Cassation to that effect. Lastly, the Government did not provide a convincing explanation of the Court of Cassation ’ s position. On the one hand, the Court of Cassation did not doubt that the exercise of the right of pre-emption was compatible with Article 6 (art. 6) of the Convention and Article 1 of Protocol No. 1 (P1-1) as long as a dispossessed purchaser could have a court review whether the conditions of its exercise had been satisfied (see paragraph 18 above); and on the other hand, it could not be unaware that in the instant case, as a result of the application of its own earlier principles, the dispossessed purchasers had been deprived of this possibility. Yet it did not quash the Court of Appeal ’ s judgment for infringing the Convention provisions. 33. Accordingly, Mrs Hentrich gave the French courts the opportunity which is in principle intended to be afforded to Contracting States by Article 26 (art. 26), namely the opportunity of preventing or putting right the violations alleged against them (see, among other authorities, the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 27, para. 72). The objections must therefore be dismissed. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1) 34. In the applicant ’ s submission, the pre-emption of her property by the Revenue amounted to a de facto expropriation and infringed Article 1 of Protocol No. 1 (P1-1), which provides: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 35. Because the right of pre-emption was exercised, Mrs Hentrich was deprived of her property within the meaning of the second sentence of the first sub-paragraph of Article 1 (P1-1); the Government did not contest that. 36. The Court therefore has to satisfy itself that the requirements of the provision in question were complied with. A. Purpose of the interference 37. In the applicant ’ s view, the prevention of tax evasion would only be an aim in the public interest if the owner was presumed guilty of tax evasion and if his property was subsequently used for a purpose that was in the public interest. A purchaser of real property could only be deprived by the Revenue of any profit made at the time of purchase in the event of fraud. That a price was too low might be explained by innocuous factors, such as goodwill, ignorance or urgency. 38. The Government maintained that the pre-emption procedure was the only means available to the Revenue for regulating, and raising moral standards in, the property market and preventing tax evasion. The value of the procedure, which the Revenue considered to be particularly effective, lay in its deterrent nature and the fact that it was exceptional, being used only when - as in the instant case - the price was manifestly too low. 39. Like the Commission, the Court notes that the right of pre-emption is exercised only where the declared price falls short of the Revenue ’ s valuation of the real property purchased. The right of pre-emption is not designed to punish tax evasion, and it applies even where the declared price corresponds to the price actually paid, but its purpose is to prevent non-payment of higher registration fees. The purchaser ’ s good or bad faith is therefore immaterial. The Court reiterates that the notion of "public interest" is necessarily extensive and that the States have a certain margin of appreciation to frame and organise their fiscal policies and make arrangements - such as the right of pre-emption - to ensure that taxes are paid. It recognises that the prevention of tax evasion is a legitimate objective which is in the public interest. It does not have to decide in the instant case whether the right of pre-emption could legitimately be designed also to regulate the property market. B. Lawfulness of the interference 40. In Mrs Hentrich ’ s submission, the pre-emption procedure was arbitrary as the Revenue had not given reasons for its decision and the taxpayer had not been able to know or criticise the reasons for it subsequently. 41. The Government maintained that the pre-emption measure had to comply with Law no. 79-587 of 11 July 1979 and was reviewable by the courts. Admittedly, the concept of a price being too low was imprecise, but it was to be assessed with reference to transfers of the same type in similar circumstances and the assessment could be challenged by the dispossessed owner. 42. Unlike the Commission, the Court considers it necessary to rule on the lawfulness of the interference. While the system of the right of pre-emption does not lend itself to criticism as an attribute of the State ’ s sovereignty, the same is not true where the exercise of it is discretionary and at the same time the procedure is not fair. In the instant case the pre-emption operated arbitrarily and selectively and was scarcely foreseeable, and it was not attended by the basic procedural safeguards. In particular, Article 668 of the General Tax Code, as interpreted up to that time by the Court of Cassation and as applied to the applicant, did not sufficiently satisfy the requirements of precision and foreseeability implied by the concept of law within the meaning of the Convention. A pre-emption decision cannot be legitimate in the absence of adversarial proceedings that comply with the principle of equality of arms, enabling argument to be presented on the issue of the underestimation of the price and, consequently, on the Revenue ’ s position - all elements which were lacking in the present case. The Court notes that the French legal system has in fact been modified in this respect, it now being mandatory for the reasons for administrative pre-emption decisions to be subject to the adversarial principle. It must, however, observe that this development did not avail the applicant, although it could have done. C. Proportionality of the interference 43. According to Mrs Hentrich, the fact that it was impossible to defend herself against the effect of the pre-emption - which she described as dishonouring - made the measure a disproportionate one, as did the inadequacy of the compensation paid for the expropriation. 44. The Government disagreed with the Commission ’ s opinion that the measure was disproportionate to the objective sought to be achieved because of the existence of the adversarial procedure of a supplementary tax assessment. They said that this procedure had neither the same purpose nor the same effects. Pre-emption, which was more markedly exemplary in character, was designed essentially to ensure that the sale price of the real property concerned was not taken as a bench-mark, whereas supplementary tax assessments, which were of more general application, were unsuited to this type of situation. A revised assessment was a tax penalty which had no impact on the general organisation of the property market and whose legal consequences affected only the parties to the sale and more particularly the purchaser. In the Government ’ s submission, dispossessed purchasers did not sustain any financial loss since they received, in addition to the price paid to acquire the real property, a supplementary payment of 10% and could claim reimbursement of the costs and fair expenses of the contract and, on production of vouchers, reimbursement of sums committed before the pre-emption. Any purely non-pecuniary damage that might be suffered would certainly not be disproportionate to the aim pursued. Whatever the reason for the declared price being too low, the community suffered a substantial loss of transfer duty, and this called for an appropriate response. 45. In order to assess the proportionality of the interference, the Court looks at the degree of protection from arbitrariness that is afforded by the proceedings in this case. 46. In this instance the trial and appeal courts interpreted the domestic law as allowing the State to avail itself of its right of pre-emption without having to indicate the reasons of fact and law for its decision. 47. The Court notes, firstly, that the Revenue may, through the exercise of its right of pre-emption, substitute itself for any purchaser, even one acting in perfectly good faith, for the sole purpose of warning others against any temptation to evade taxes. This right of pre-emption, which does not seem to have any equivalent in the tax systems of the other States parties to the Convention, does not apply systematically - in other words, every time the price has been more or less clearly underestimated - but only rarely and scarcely foreseeably. Furthermore, the State has other suitable methods at its disposal for discouraging tax evasion where it has serious grounds for suspecting that this is taking place; it can, for instance, take legal proceedings to recover unpaid tax and, if necessary, impose tax fines. Systematic use of these procedures, combined with the threat of criminal proceedings, should be an adequate weapon. 48. The Court considers that the question of proportionality must also be looked at from the point of view of the risk run by any purchaser that he will be subject to pre-emption and therefore penalised by the loss of his property solely in the interests of deterring possible underestimations of price. The exercise of the right of pre-emption entails sufficiently serious consequences for the measure to attain a definite level of severity. Merely reimbursing the price paid - increased by 10% - and the costs and fair expenses of the contract cannot suffice to compensate for the loss of a property acquired without any fraudulent intent. 49. Having regard to all these factors, the Court considers that, as a selected victim of the exercise of the right of pre-emption, Mrs Hentrich "bore an individual and excessive burden" which could have been rendered legitimate only if she had had the possibility - which was refused her - of effectively challenging the measure taken against her; the "fair balance which should be struck between the protection of the right of property and the requirements of the general interest" was therefore upset (see, mutatis mutandis, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 28, para. 73, and the AGOSI v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 19, para. 55, and p. 21, para. 62). D. Conclusion 50. Accordingly, there has been a breach of Article 1 of Protocol No. 1 (P1-1). IV. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 2 (art. 6-1, art. 6-2) OF THE CONVENTION 51. Mrs Hentrich claims to be the victim of violations of Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention, which provide: "1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." 52. Like those appearing before it, the Court considers that Article 6 para. 1 (art. 6-1) applies in the instant case. A. Fairness of the proceedings 53. The applicant complained that the Revenue and the courts had not given her a "fair" hearing. She had not been able to challenge effectively the authorities ’ assessment by adducing evidence to show that she had acted in good faith and that the proper price had been paid. In short, the principle of equality of arms had been contravened. 54. This was also the opinion of the Commission. 55. The Government conceded that Mrs Hentrich had been unable to defend herself in the Strasbourg tribunal de grande instance and the Colmar Court of Appeal, as those courts had held that Article 668 of the General Tax Code conferred a discretionary power on the Revenue and that accordingly a dispossessed purchaser could not validly challenge a pre-emption. The Government considered, however, that she had not taken advantage of the opportunity afforded her by the appeal on points of law to have any shortcomings of the tribunals of fact remedied, and maintained at all events that the trial had been fair. 56. The Court notes, firstly, that as their sole defence on this point the Government merely reiterated the objection that has already been dismissed (see paragraphs 32 and 33 above). Secondly, it points out that one of the requirements of a "fair trial" is "equality of arms", which implies that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, para. 33). In the instant case, the proceedings on the merits did not afford the applicant such an opportunity: on the one hand, the tribunals of fact allowed the Revenue to confine the reasons given for its decision to exercise the right of pre-emption to stating "the sale price declared in the contract of sale [is] too low" (see paragraphs 9 and 15 above) - reasons that were too summary and general to enable Mrs Hentrich to mount a reasoned challenge to that assessment; and on the other hand, the tribunals of fact declined to allow the applicant to establish that the price agreed between the parties corresponded to the real market value of the property. There has therefore been a breach of Article 6 para. 1 (art. 6-1) in this respect. B. Length of the proceedings 57. Mrs Hentrich also complained of the length of the proceedings. 58. The period to be taken into consideration began on 31 March 1980, when proceedings were instituted in the Strasbourg tribunal de grande instance, and ended on 16 June 1987, with the delivery of the Court of Cassation ’ s judgment. It therefore amounted to seven years and nearly three months. 59. The reasonableness of the length of proceedings is to be determined with reference to the criteria laid down in the Court ’ s case-law and in the light of the circumstances of the case, which in this instance call for an overall assessment. 60. In the Government ’ s submission, the case was not a complex one, except in the Court of Cassation; Mrs Hentrich contributed to slowing down the proceedings; and the judicial authorities could not be held responsible for the proceedings having taken an abnormal length of time, in view of the backlog of business in the Colmar Court of Appeal. 61. Like the Commission, the Court notes that while the proceedings at first instance progressed at an acceptable pace, there were delays especially on appeal (the proceedings took four years), and to a lesser extent in the Court of Cassation (where the proceedings lasted two years). For the most part, the length of the appeal proceedings was due to the backlog of business in the Colmar Court of Appeal, a factor which, as the Court has consistently held in the past, cannot excuse it. On the other hand, the length of the proceedings in the Court of Cassation was attributable primarily to that court ’ s wish to hear together four cases that raised similar issues - an approach which is understandable but which, under Article 6 (art. 6) of the Convention, cannot justify substantial delay. That being so, and having regard to what was at stake for the applicant, the Court cannot regard the lapse of time in the instant case as having been "reasonable". There has therefore been a breach of Article 6 para. 1 (art. 6-1) in this respect. C. Presumption of innocence 62. The applicant maintained lastly that, contrary to the presumption of innocence, the pre-emption in issue was tantamount to an accusation of tax evasion. She referred to the opinion of French legal writers that pre-emption was a penalty designed to punish possible tax evaders without the Revenue having the burden of proving the offence. 63. The Government ’ s primary submission was that Article 6 para. 2 (art. 6-2) was inapplicable in the instant case. The pre-emption procedure had no criminal characteristics, either in domestic law or from the point of view of the Convention; it was concerned only with a physical fact, namely that the price paid for a property transfer was too low, and it did not necessarily imply a fraud amounting to a criminal offence. In the alternative, they considered that the complaint was ill-founded, as a dispossessed purchaser had the possibility of challenging a pre-emption decision in the ordinary courts. 64. Like the Commission, the Court considers that the implementation of the pre-emption measure was not tantamount to a declaration of guilt. V. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION 65. In view of its decision in respect of Article 6 para. 1 (art. 6-1), the Court considers it unnecessary to look at the case under Article 13 (art. 13) of the Convention; this is because the requirements of that provision are less strict than, and are here absorbed by, those of Article 6 para. 1 (art. 6-1) (see, among other authorities, the Pudas v. Sweden judgment of 27 October 1987, Series A no. 125-A, p. 17, para. 43). VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 AND ARTICLES 6 AND 13 (art. 14+P1-1, art. 14+6, art. 13) OF THE CONVENTION 66. The findings in paragraphs 50, 56, 61, 64 and 65 above make it unnecessary for the Court to consider also the complaint that the applicant had suffered discrimination contrary to Article 14 (art. 14) of the Convention in the enjoyment of the rights secured to her in Article 1 of Protocol No. 1 and Articles 6 and 13 (P1-1, art. 6, art. 13) of the Convention. VII. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 67. Article 50 (art. 50) of the Convention provides: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." Under this provision, Mrs Hentrich sought compensation for damage and reimbursement of costs. A. Damage 68. The applicant said that the seized land could now be built on and that its value was in the region of FRF 1 million. She concluded that the exercise of the right of pre-emption had enabled the State to enrich itself at her expense without cause to the extent of at least FRF 800,000 and claimed this amount in compensation for pecuniary damage. She also alleged non-pecuniary damage but left it to the Court ’ s discretion to assess its extent. 69. The Government disputed that the alleged financial damage had actually been sustained and considered that at all events the calculation had to be based on the situation at the time of the pre-emption, unless the purely speculative nature of the purchase was to be recognised. 70. The Delegate of the Commission left the matter to the Court ’ s discretion. 71. The Court considers that the applicant may have suffered non-pecuniary damage, but the present judgment affords her sufficient compensation in this respect. On the other hand, the question of pecuniary damage is not ready for decision. Given the violation found of Article 1 of Protocol No. 1 (P1-1), the best form of redress would in principle be for the State to return the land. Failing that, the calculation of pecuniary damage must be based on the current market value of the land. Those appearing before the Court did not supply any very precise particulars on this matter. Accordingly, the question must be reserved and the further procedure must be fixed, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 54 paras. 1 and 4 of the Rules of Court). B. Costs and expenses 72. Mrs Hentrich sought reimbursement of the costs of representation in the French courts (FRF 29,075) and before the Convention institutions (FRF 27,000). 73. The Government expressed no view as to the amount of lawyer ’ s fees but pointed out that only expenses actually incurred could be reimbursed. 74. The Delegate of the Commission did not find the sums sought exorbitant. 75. The Court allows the applicant ’ s claim in full. | The Court held that there had been a violation of Article 1 (protection of property) of Protocol No. 1. Having regard to all the facts of the case, it considered that, as a selected victim of the exercise of the right of pre-emption, the applicant had borne an individual and excessive burden which could have been rendered legitimate only if she had had the possibility – which was refused her – of effectively challenging the measure taken against her; the fair balance which should be struck between the protection of the right of property and the requirements of the general interest had therefore been upset. The Court further held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention, finding that, in the present case, the proceedings on the merits had not afforded the applicant a reasonable opportunity to present her case under conditions that did not place her at a substantial disadvantage vis-à-vis her opponent. It also found a violation of Article 6 § 1 on account of the length of the proceedings. In its judgment on just satisfaction of 3 July 1995, the Court further decided that France was to pay the applicant 800,000 French francs in respect of pecuniary damage. |
206 | Access to a lawyer | II. RELEVANT DOMESTIC ... LAW AND PRACTICE A. Relevant provisions concerning the right to legal assistance and the discovery of an offence while being committed 58. The articles of the Code of Criminal Procedure that are relevant for the present case read as follows : Article 171 on the right of suspects or accused persons to legal assistance “ (1) Suspects or accused persons have the right to legal assistance throughout the criminal proceedings, and the judicial authorities shall inform them of that right ... ” 59. The Constitutional Court has confirmed on a number of occasions that the prosecution is not obliged to ensure the provision of legal assistance in the context of measures taken at the preliminary investigation stage, on the ground that no evidence capable of being used during the subsequent criminal proceedings can be gathered at this stage ( judgments nos. 141/1999, 210/2000 and 582/2005). Article 224 §§ 1 and 3 on the preliminary investigation “ 1. The prosecuting authority may take any measure of preliminary investigation. ... 3. The report concerning the taking of any measure of preliminary investigation shall constitute valid evidence.” Article 467 on the discovery of an offence while it is being committed “ (1) The prosecuting authority dealing with the case shall draw up a report setting out the various aspects of the offence committed. The statements of the suspect and other persons questioned shall also be recorded in the report.” ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 66. The applicant ... also complained that he had not been notified of his right to remain silent and that he had not been assisted by a lawyer during his first questioning by the prosecutor immediately after the discovery of the offence while being committed, or at least that he had not been informed of that right. He further observed that he had not been informed of the accusations against him. ... 67. The applicant relied on [Article] 6 §§ 1 and 3 ... (c) ... of which the relevant parts read as follows: “1. In the determination of ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ... ” ... B. Merits 1. The necessity of being assisted by a lawyer during questioning in the context of a procedure concerning the discovery of an offence while being committed and the failure to notify the right to remain silent ( a) The parties ’ submissions 86. The applicant took the view that he should have been assisted by a lawyer when he gave his first statement as recorded in the report concerning the discovery of an offence while being committed, pointing out that this document had constituted a very important item of evidence for the prosecution in securing his conviction. He also complained that he had not been informed beforehand of the accusation against him, of his right to remain silent or of his right to legal assistance. 87. The Government argued that the report concerning the discovery of an offence while being committed did not constitute the sole evidence on which the applicant ’ s conviction had been based, so the fact he had not had legal assistance at the relevant stage in the proceedings did not entail a violation of Article 6 of the Convention. They added that the applicant had been informed very promptly of his right to defend himself or to benefit from legal assistance. Thus, on the very day of the discovery of the offence, during his first questioning by the prosecuting authorities, and subsequently throughout the proceedings, the applicant had been assisted by a lawyer of his choosing. ( b) The Court ’ s assessment ( i) Applicable principles 88. The Court reiterates that national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right, for which the Convention does not expressly provide, may be subject to restrictions for good cause ( see Salduz [ v. Turkey [GC], no. 36391/02,] § 52 [, ECHR 2008] ). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction, because the individual concerned will be personally affected by the restrictions ( see Salduz, cited above, §§ 55, 58 and 62, and Pishchalnikov v. Russia, no. 7025/04, §§ 70 and 90, 24 September 2009 ). 89. The Court further finds that, in accordance with Article 467 of the Romanian Code of Criminal Procedure concerning the discovery of an offence while being committed, the prosecuting authority draws up a report in which the statements of the suspect and other persons questioned are recorded. It also notes that the applicant ’ s statement as recorded in that report was a different act from the first statement that he later gave after he was formally charged. 90. The Court reiterates that its task is not to ascertain in abstracto whether the Romanian legal system in respect of the procedure for the discovery of an offence while being committed is compliant with the Convention, but to examine whether there has been a violation in the precise case before it. Similarly, it will examine the proceedings as a whole before the domestic courts to ascertain whether the absence of a lawyer at the time of those statements personally affected the individual concerned and breached his right to a fair hearing ( see Tsaggarakis v. Greece (dec.), no. 45136/06, 10 September 2009). ( ii) Application of those principles to the present case 91. In the present case, the Court observes that, in the light of the domestic law, the applicant did not have the right to be assisted by a lawyer while the investigators were questioning him in the context of the procedure concerning the discovery of an offence while being committed, because he did not yet have the status of suspect or accused person. 92. The Court notes that the purpose of the said procedure is to catch a suspect in the act of committing an offence and that an official report is drawn up to record the suspect ’ s statement at the time of being caught. In this connection, it takes the view that the investigators must confine themselves to asking questions about the material aspects of the acts observed during the discovery of the offence and avoid transforming this statement-taking into a fully-fledged interview on the charges. 93. In the present case, the Court notes that in the said report the investigators recorded the material elements observed during the discovery of the offence, such as the objects found, their contents and the results of forensic examinations, and noted the applicant ’ s replies to their questions. In his replies the applicant admitted that he had received an envelope from N.D. He also described what he had been doing at the time of the investigators ’ arrival, explaining that he had been looking for documents on his desk and was about to leave the room when he was apprehended by the prosecutor ’ s representatives. 94. The applicant did not indicate that he was aware of the contents of the envelope. In addition, he was not questioned about the circumstances or reasons which had led N.D. to leave the envelope on his desk or about any agreements he may have had with her. 95. The Court further observes that, from the time he was formally charged, later on the same day, the applicant was assisted by a lawyer of his choosing, who then assisted him in all his statements before the prosecuting authority and the High Court. In all his statements the applicant denied the charges. The Court observes, however, that he never disputed the content of his remarks as noted in the report concerning the discovery of the offence. 96. The Court notes, lastly, that the report concerning the discovery of the offence while being committed constituted one of the items of evidence used by the High Court in finding the applicant criminally responsible. However, the High Court took the report into account as evidence that the applicant had been caught in the act of committing an offence, without regarding the applicant ’ s remarks as a separate statement on the charges. Moreover, the High Court noted that the applicant had always denied the charges. The Court thus concludes that the applicant ’ s remarks as noted in the report concerning the discovery of the offence did not adversely affect him ( see, mutatis mutandis, Stanca v. Romania, no. 34116/04, § 62, 24 July 2012, and Minculescu v. Romania (dec.), no. 7993/05, § 84, 13 November 2012). 97. The Court further notes that the applicant was informed of the substance of the accusations against him from the time of his first interviews and that after being remanded in custody he was represented by lawyers at all stages of the proceedings ( contrast Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009 ). 98. Lastly, the Court emphasises that the applicant did not allege, before either the domestic courts or this Court, that he had given his initial statements under duress ( contrast Salduz, cited above, § 17). 99. Having regard to the foregoing, the Court finds that in the present case there has been no violation of Article 6 §§ 1 and 3 ( c) of the Convention. ... | The Court held that there had been no violation of Article 6 §§ 1 and 3 of the Convention in respect of the lack of assistance from a lawyer during the applicant’s questioning by the police under the flagrante delicto procedure. Observing that under Romanian law where a person is “caught in the act” of committing an offence, the investigating authorities must confine themselves to questions about the material evidence found at the scene of the flagrante delicto and must not question the person about his involvement in a criminal offence, it found that the investigating authorities had not overstepped the mark in the applicant’s case. It also noted that when the applicant had been questioned by the anti-corruption prosecutor about the offence he had had access to a lawyer. In all his statements, the applicant had maintained his innocence and had never contested the statements contained in the procès-verbal. The Court therefore found that the use of those statements at trial could not be said to have prejudiced the fairness of his trial. The Court also noted in conclusion that the applicant had never alleged that his very first statements recorded in the procès-verbal had been the result of duress or ill treatment. |
719 | Exposure to nuclear radiation | ii. relevant domestic law and practice Reay and Hope v. British Nuclear Fuels PLC 17. In 1983 an Independent Advisory Group, chaired by Sir Douglas Black, was set up in the United Kingdom to investigate reports of an abnormally high number of children contracting leukaemia in the area around the nuclear power reactor at Sellafield (formerly called Windscale ) in northern England. The Group confirmed that childhood leukaemia was more common in this area than normal, but was not able to determine the reason for this. One of the members of the Group, Dr Martin Gardner, went on to conduct three studies into the phenomenon. The third, published on 17 February 1990 (“the Gardner Report”), found a statistical association between the incidence of leukaemia in children from the town of Seascale, near Sellafield, and relatively high recorded doses of external whole-body radiation received by their fathers employed at the nuclear power plant prior to conception. 18. Following the publication of this report, two cases were brought against the authority responsible for the Sellafield reactor by plaintiffs who had contracted leukaemia and non-Hodgkin’s lymphoma respectively, claiming that their fathers’ employment at Sellafield had caused their illnesses. The two cases were heard concurrently in the High Court of Justice, London, on ninety days between October 1992 and June 1993. Over thirty expert witnesses gave oral evidence before the court and approximately one hundred written reports were submitted, primarily directed at the question whether the statistical association found by Dr Gardner could be relied upon and was directly causal, as claimed by the plaintiffs. 19. Judgment was given by Mr Justice French on 8 October 1993. He found, inter alia, that the Gardner Report was “a good study, well carried out and presented”. However, certain technical criticisms which had been made of it were valid so as to diminish confidence in its conclusions and underline the need to seek confirmation from other independent studies before relying on it. He did, however, find that the evidence bore out a strong prima facie association between paternal preconceptional irradiation and childhood leukaemia in Seascale, although considerable reserve was necessary before it could be concluded that there was a causal link. Although the judge was content to assume that there was a heritable component to the plaintiffs’ diseases, he considered that this was very small. He placed particular reliance on studies of the children of survivors of the Nagasaki and Hiroshima bombings, which did not show any significant increase in leukaemia or non-Hodgkin’s lymphoma, and were therefore quite inconsistent with the Gardner hypothesis. One of the defendant’s witnesses, Sir Richard Doll, had referred to research emphasising the role of infection in causing childhood leukaemia, particularly in areas where unusual population mixing had occurred, as was the case in Seascale, which had a very mobile population of high socio-economic class situated in a remote rural area. The judge found that a theory of causation based on such factors, combined with chance, was no less plausible than the Gardner hypothesis. In conclusion, he held that, “on the evidence before me, the scales tilt decisively in favour of the defendants, and the plaintiffs, therefore, have failed to satisfy me on the balance of probabilities that paternal preconceptional radiation was a material contributory cause of the Seascale excess or, it must follow, of [their diseases]” ( Reay v. British Nuclear Fuels PLC; Hope v. British Nuclear Fuels PLC [1994] 5 Medical Law Reports 1 ‑ 55; and see also ‘Childhood leukaemia and Sellafield : the legal cases’, Journal of Radiological Protection, vol. 14, no. 4, pp. 293–316). PROCEEDINGS BEFORE THE COMMISSION 21. In her application to the Commission (no. 23413/94) of 21 April 1993, the applicant complained under Articles 2 and 3 of the Convention that she had not been warned of the effects of her father’s alleged exposure to radiation, which prevented pre- and post-natal monitoring that would have led to earlier diagnosis and treatment of her illness. In addition, she claimed to have been subjected to harassment and surveillance, in breach of Article 8. 22. On 28 November 1995 the Commission declared the application admissible in so far as it related to the complaints under Articles 2 and 3 about failure to advise and inform the applicant’s parents about her father’s alleged exposure to radiation. In its report of 26 November 1996, (Article 31), it expressed the unanimous opinion that there had been no violations of Articles 2 and 3. The full text of the Commission’s opinion and of the concurring opinion contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 23. The Government, in their written and oral pleadings, asked the Court to find no violation of the Convention. The applicant asked the Court to find violations of Articles 2, 3, 8 and 13 of the Convention, and to award her damages under Article 50. as to the law i. alleged violations of article 2 of the convention 24. Before the Court, the applicant claimed that both the State’s failure to warn her parents of the possible risk to her health caused by her father’s participation in the nuclear tests, and its earlier failure to monitor her father’s radiation dose levels, gave rise to violations of Article 2 of the Convention, which provides, in paragraph 1: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” A. Arguments of those appearing before the Court 1. The applicant 25. The applicant maintained that the respondent State had deliberately exposed her father and the other servicemen stationed on Christmas Island to radiation for experimental purposes. In support of this contention, she referred to a number of documents, including a 1953 report of the British Defence Research Policy Committee on Atomic Weapons, which requested tests to be carried out during future atomic weapons trials on the effects of different types of explosion on “men with and without various types of protection”; a 1955 Royal Air Force (“RAF”) memorandum which stated that “during the 1957 trials [in Maralinga, Australia] the RAF will gain invaluable experience in handling the weapons and demonstrating at first hand the effects of nuclear explosions on personnel and equipment”; and a 1957 War Office circular, again related to the tests in Australia, which stated that “all personnel selected for duty at Maralinga may be exposed to radiation in the course of their military duties”. 26. She stated that, as early as 1946, serious concern had been expressed, for example in letters to the Lancet (a leading British medical journal), about the genetic effects of radiation. In 1947, the Medical Research Council of Great Britain (“MRC”)’s Committee on the Medical and Biological Applications of Nuclear Physics had reported that “all quantitative experiments show that even the smallest doses of radiation produce a genetic effect…”. In 1956 the MRC found, inter alia, that “doses of radiation which are of no known significance to the individual may have genetic consequences” and recommended, in connection with those exposed to radiation used for medical or industrial purposes, that “a personal record … should be kept for all persons whose occupation exposes them to additional sources of radiation”. 27. She alleged that, despite or because of this evidence, in order to avoid liability for any subsequent health problems caused by the Christmas Island tests, the military authorities had decided not to monitor the servicemen’s individual radiation dose levels or to provide them with any information as to the possible health consequences, for themselves and their future offspring, of their presence on the island. It could not, therefore, be known with any certainty whether or not her father had been exposed to dangerous levels of radiation. However, a report prepared by Mr J.H. Large, a chartered engineer who had studied, inter alia, a number of photographs of the detonation on Christmas Island of 28 April 1958 (“Grapple Y”), suggested that this bomb was detonated at approximately 1,000 to 1,250 metres above ground, which would have resulted in a substantial mass of surface debris being swept up, subjected to intense irradiation, and then, depending on meteorological conditions, possibly scattered as radioactive fall-out over a radius of 50 to 100 miles. 28. The applicant considered that her father’s unmonitored exposure to radiation was the probable cause of her childhood leukaemia. She submitted that the decision in Reay and Hope v. British Nuclear Fuels PLC (see paragraph 19 above) was not conclusive, for a number of reasons. First, the judge had been wrong to rely on the results of the studies of the children of Hiroshima and Nagasaki survivors, since these studies had depended on acquiring information from a foreign and hostile population in the chaotic conditions following the bombings. Moreover, the studies had only acquired data over a four-year period (1947–51), whereas childhood leukaemia had its highest mortality rate in the first five years of life. Secondly, she pointed out that the plaintiffs’ leading expert witness, Professor T. Nomura, whose five reports on radiation-induced transgenerational carcinogenesis in mice were admitted in evidence, had been unable to attend to give oral evidence at the hearing. She submitted that subsequent research had confirmed the correctness of the Gardner hypothesis (see paragraph 17 above). For example, a study carried out by members of the Russian Academy of Sciences, the Mogilev Research Institute for Radiation Medicine and the University of Leicester Genetics Department had found a 50% increase in genetic mutations in children born in 1994 to parents exposed to radiation following the 1986 Chernobyl disaster, and British and American researchers had found an association between medical X-ray exposures of male patients and lower birth weight in their offspring (‘Human minisatellite mutation rate after the Chernobyl accident’, Nature, vol. 380, pp. 683–86; ‘Association between preconception parental X-ray exposure and birth outcome’, American Journal of Epidemiology, vol. 145, no. 6, pp. 546–51). In addition, a report prepared for the BNTVA in 1992 had found that one in five of the 1,454 nuclear test veterans included in the survey had children with illnesses or defects which could have had a genetic origin. 29. The applicant claimed that, had the State provided her parents with information regarding the extent of her father’s exposure to radiation and the risks which this engendered, and monitored her health from infancy, it would have been possible to diagnose her leukaemia earlier and to provide her with treatment which could have alleviated the risk to her life. She provided the Court with the report of Dr Irwin Bross, former Director of Biostatistics at Roswell Park Memorial Institute for Cancer Research (New York), which stated that, by the early 1960s, treatments had been developed in the United States, and were coming into world-wide use, which had been proved successful in clinical trials in producing prolonged remissions in childhood leukaemia. Dr Bross considered that, depending on the attitude of the doctors who attended the applicant, such treatment could have been commenced at first diagnosis, which could have avoided the life-threatening stage of the disease. In the applicant’s comments in response to Professor Eden’s report (see paragraphs 8 above and 33 below), Dr Bross emphasised that it could not at this stage be known whether Ms L.C.B. should have been diagnosed with the myeloid or the lymphatic form of leukaemia, and that, had she in fact suffered from acute lymphatic leukaemia, this would destroy the basis of Professor Eden’s conclusion that earlier detection and intervention would not have improved her prognosis. 2. The Government 30. The Government submitted that they could not be held responsible for alleged breaches of the Convention which occurred prior to 14 January 1966, when the United Kingdom recognised the competence of the Commission to receive individual petitions and the jurisdiction of the Court (see paragraph 20 above). Between that date and October 1970, when the applicant was diagnosed with leukaemia, the State authorities had had no cause to give advice or information to her parents, for the following reasons. 31. In the first place, there was no reason to believe that her father had been exposed to dangerous levels of radiation, as was shown by contemporaneous samples of environmental radiation taken on Christmas Island. Contrary to Mr Large’s assessment (see paragraph 27 above), the Grapple Y detonation at Christmas Island had taken place at 2,500 metres above ground level. At that height, any fall-out would have passed rapidly into the upper atmosphere to be distributed over a number of months as global fall-out. There had certainly been no intent to expose the servicemen to radiation: an experiment of the kind alleged would have been not only scandalous, but also pointless, since by the 1950s a considerable amount of information about the effects of radiation on the human body had already been derived from the survivors of the Hiroshima and Nagasaki bombs. The documents relied on by the applicant in this connection had been presented out of context and did not support the implications she had sought to draw from them. 32. In any case, they submitted that the best scientific interpretation of the available evidence was that it did not support the existence of any causative link between the exposure of parents to radiation and the onset of leukaemia in their children. The most substantial study on the subject was that of 30,000 children born to survivors of the Hiroshima and Nagasaki bombs between 1946 and 1982, which found no statistically significant increase in leukaemia. The studies relied on by the applicant in this respect were by no means conclusive. Moreover, the High Court judge, sitting in the cases of Reay and Hope v. British Nuclear Fuels PLC (see paragraph 19 above), having considered the reports of one hundred expert witnesses and the oral evidence of thirty, decided that the causal link between preconception parental radiation and leukaemia in children had not been established. 33. Finally, in response to the evidence of Dr Bross (see paragraph 29 above), the Government submitted a report by Professor Osborn B. Eden, Professor of Paediatric Oncology at the University of Manchester, who stated that Dr Bross’s comments applied essentially to acute lymphatic leukaemia, rather than the form of the disease with which the applicant appeared to have been diagnosed in 1970, namely acute myeloid leukaemia (although, with the passage of time, it was not possible to ascertain whether this had been the correct diagnosis). From an extensive review of the literature, he could find no evidence to support the proposition that truly effective treatment was available for acute myeloid leukaemia throughout the 1960s. Moreover, he did not consider that an earlier diagnosis could have been made or that it would have made any difference to the outcome. 3. The Commission 34. The Commission, which had not had the benefit of seeing the reports of either Dr Bross or Professor Eden, found that the applicant had not demonstrated that earlier diagnosis and treatment of her disease could have altered its fatal nature or alleviated her physical or mental suffering in any way. Accordingly, whether or not Article 2 was applicable, her complaints did not disclose a violation. B. The Court’s assessment 1. Scope of the case under Article 2 35. The Court observes that the applicant’s complaint about the failure of the respondent State to monitor the extent of her father’s exposure to radiation on Christmas Island was not raised before the Commission (see paragraph 21 above). It reiterates that the scope of its jurisdiction is determined by the Commission’s decision on admissibility, it having no power to entertain new and separate complaints not raised before the Commission (see, inter alia, the Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, pp. 277 ‑ 78, § 63). In any case, this complaint is based on events which took place in 1958, before the United Kingdom’s Articles 25 and 46 declarations of 14 January 1966 (see paragraph 20 above). It follows that the Court has no jurisdiction to consider it. 2. Assessment of the complaint concerning failure to take measures in respect of the applicant 36. The applicant complained in addition that the respondent State’s failure to warn and advise her parents or monitor her health prior to her diagnosis with leukaemia in October 1970 had given rise to a violation of Article 2 of the Convention. In this connection, the Court considers that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (cf. the Court’s reasoning in respect of Article 8 in the Guerra and Others v. Italy judgment of 19 February 1998, Reports 1998-I, p. 227, § 58, and see also the decision of the Commission on the admissibility of application no. 7154/75 of 12 July 1978, Decisions and Reports 14, p. 31). It has not been suggested that the respondent State intentionally sought to deprive the applicant of her life. The Court’s task is, therefore, to determine whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk. 37. The Court notes that the applicant’s father was serving as a catering assistant on Christmas Island at the time of the United Kingdom’s nuclear tests there (see paragraph 12 above). In the absence of individual dose measurements, it cannot be known with any certainty whether, in the course of his duties, he was exposed to dangerous levels of radiation. However, the Court observes that it has not been provided with any evidence to prove that he ever reported any symptoms indicative of the fact that he had been exposed to above-average levels of radiation. The Court has examined the voluminous evidence submitted by both sides relating to the question whether or not he was so exposed. It notes in particular that records of contemporaneous measurements of radiation on Christmas Island (see paragraph 31 above) indicate that radiation did not reach dangerous levels in the areas in which ordinary servicemen were stationed. Perhaps more importantly for the issues under Article 2, these records provide a basis to believe that the State authorities, during the period between the United Kingdom’s recognition of the competence of the Commission to receive applications on 14 January 1966 and the applicant’s diagnosis with leukaemia in October 1970, could reasonably have been confident that her father had not been dangerously irradiated. 38. Nonetheless, in view of the lack of certainty on this point, the Court will also examine the question whether, in the event that there was information available to the authorities which should have given them cause to fear that the applicant’s father had been exposed to radiation, they could reasonably have been expected, during the period in question, to provide advice to her parents and to monitor her health. The Court considers that the State could only have been required of its own motion to take these steps in relation to the applicant if it had appeared likely at that time that any such exposure of her father to radiation might have engendered a real risk to her health. 39. Having examined the expert evidence submitted to it, the Court is not satisfied that it has been established that there is a causal link between the exposure of a father to radiation and leukaemia in a child subsequently conceived. As recently as 1993, the High Court judge sitting in the cases of Reay and Hope v. British Nuclear Fuels PLC, having examined a considerable amount of expert evidence, found that “the scales tilt[ ed ] decisively” in favour of a finding that there was no such causal link (see paragraph 19 above). The Court could not reasonably hold, therefore, that, in the late 1960s, the United Kingdom authorities could or should, on the basis of this unsubstantiated link, have taken action in respect of the applicant. 40. Finally, in the light of the conflicting evidence of Dr Bross and Professor Eden (see paragraphs 29 and 33 above), and as the Commission also found (see paragraph 34 above), it is clearly uncertain whether monitoring of the applicant’s health in utero and from birth would have led to earlier diagnosis and medical intervention such as to diminish the severity of her disease. It is perhaps arguable that, had there been reason to believe that she was in danger of contracting a life-threatening disease owing to her father’s presence on Christmas Island, the State authorities would have been under a duty to have made this known to her parents whether or not they considered that the information would assist the applicant. However, this is not a matter which the Court is required to decide in view of its above findings (see paragraphs 38–39). 41. In conclusion, the Court does not find it established that, given the information available to the State at the relevant time (see paragraph 37 above) concerning the likelihood of the applicant’s father having been exposed to dangerous levels of radiation and of this having created a risk to her health, it could have been expected to act of its own motion to notify her parents of these matters or to take any other special action in relation to her. It follows that there has been no violation of Article 2. ii. alleged violation of article 3 of the convention 42. The applicant complained that the matters referred to in connection with Article 2 amounted in addition to ill-treatment contrary to Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 43. For the reasons referred to in connection with Article 2 (see paragraph 41 above), the Court does not find it established that there has been a violation by the respondent State of Article 3. iii. alleged violations of articles 8 and 13 of the convention 44. The applicant complained before the Court that the State’s failure to measure her father’s individual exposure to radiation and its withholding of contemporaneously produced records of the levels of radiation on Christmas Island constituted violations of Articles 8 and 13 of the Convention, which provide respectively: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 45. The Court recalls that these complaints were not raised before the Commission (see paragraph 21 above). It therefore has no jurisdiction to consider them (see paragraph 35 above). 46. The Court observes that, in principle, it would be open to it to consider in relation to Article 8 the applicant’s complaint regarding the State’s failure of its own motion to advise her parents and monitor her health prior to her diagnosis with leukaemia (see the above-mentioned Guerra and Others judgment, pp. 222–24, §§ 39–46). However, having examined this question from the standpoint of Article 2, it does not consider that any relevant separate issue could arise under Article 8, and it therefore finds it unnecessary to examine further this complaint. | The Court held that there had been no violation of Article 2 of the Convention concerning the applicant’s complaint about the United Kingdom’s failure to warn and advise her parents or monitor her health prior to her diagnosis with leukaemia. It did not find it established that, given the information available to the British authorities at the relevant time concerning the likelihood of the applicant’s father having been exposed to dangerous levels of radiation and of this having created a risk to her health, they could have been expected to act of their own motion to notify the applicant’s parents of these matters or to take any other special action in relation to her. |
297 | Prevention of terrorism | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant criminal offences and defences 1. Murder 147. The unlawful taking of life with intent to kill or cause really serious harm constitutes the common-law offence of murder, which is punishable by a mandatory sentence of life imprisonment. 2. Self-defence (a) Common law 148. In England and Wales self-defence is available as a defence to crimes committed by use of force, including murder. The basic principles of self-defence are set out in Palmer v. R ([1971] AC 814): “It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.” 149. In assessing the reasonableness of the force used, prosecutors will ask, firstly, whether the use of force was necessary in the circumstances; and, secondly, whether the force used was reasonable in the circumstances. The domestic courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be ( R v. Williams (G) 78 Cr App R 276, and R v. Oatbridge 94 Cr App R 367). To that extent it is a subjective test. There is, however, also an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive. 150. In Palmer Lord Morris stated: “If there has been an attack so that the defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken.” 151. In R (Bennett) v. HM Coroner for Inner South London ([2006] HRLR 22) the Administrative Court was called upon to consider the compatibility of the law of self-defence in the United Kingdom with Article 2 of the Convention. A police officer had shot and killed Mr Bennett, who was, at the time, brandishing a cigarette lighter shaped like a pistol (for further details, see Bennett v. the United Kingdom (dec.), no. 5527/08, 7 December 2010). At the inquest which followed, the coroner refused to leave the verdict of unlawful killing to the jury. In her summing-up to the jury, she indicated that lawful killing could only occur if the evidence showed that it was probable the deceased died by the deliberate application of force against him and the person causing the injuries had used reasonable force in self-defence or defence of another, even if that force was by its nature or the manner of its application likely to be fatal. In determining whether it was self-defence or defence of another, the coroner directed the jury that the first question to be answered was whether the individual believed, or may have honestly believed, that it was necessary to defend himself or another, having regard to the circumstances which he honestly believed to exist, although the reasonableness of the belief was somewhat relevant because, if the belief on the facts was unreasonable, it might be difficult to decide that it was honestly held. The second question, which arose if the first question was answered favourably to the individual, was whether the force used was reasonable having regard to the circumstances which were believed to exist. 152. The deceased ’ s family, who were represented by the same counsel representing Mr de Menezes ’ family in the present case, were granted leave to apply for judicial review of the coroner ’ s decision on the ground, inter alia, that her direction on self-defence, in so far as it concerned the degree of force used, was not accurate having regard to Article 2 § 2 of the Convention. In particular the family argued that the direction did not comply with Article 2 because it applied a test of “reasonableness” in respect of the degree of force used rather than one of “absolute necessity”. 153. The Administrative Court judge considered the Strasbourg case-law, including McCann and Others and Bubbins (both cited above), and held as follows. “It is thus clear that the European Court of Human Rights has considered what English law requires for self-defence, and has not suggested that there is any incompatibility with Article 2. In truth, if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so. To kill when it is not absolutely necessary to do so is surely to act unreasonably. Thus, the reasonableness test does not in truth differ from the Article 2 test as applied in McCann [ and Others ]. There is no support for the submission that the court has with hindsight to decide whether there was in fact absolute necessity. That would be to ignore reality and to produce what the court in McCann [ and Others ] indicated was an inappropriate fetter upon the actions of the police which would be detrimental not only to their own lives but to the lives of others.” 154. The claimants were granted leave to appeal to the Court of Appeal on the ground that it was arguable that the coroner should have left the verdict of “unlawful” killing to the jury. However, the Court of Appeal noted that counsel “did not challenge the correctness of the Strasbourg jurisprudence to the effect that the test formulated under English law as to whether self-defence had been established was Article 2 compliant”. (b) The Criminal Justice and Immigration Act 2008 155. In 2008 the common-law definition of self-defence was incorporated into statute. Section 76 of the Criminal Justice and Immigration Act 2008 provides: “ Reasonable force for purposes of self-defence etc. ... (3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question. (4) If D claims to have held a particular belief as regards the existence of any circumstances— (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not— (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made. (5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced. (6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. (7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)— (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person ’ s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. (8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).” 3. Gross negligence manslaughter 156. Any person causing death by gross negligence may be guilty of manslaughter. In R v. Adomako ([1995] 1 AC 171) the House of Lords stated that the offence of gross negligence manslaughter would be committed where the defendant was in breach of a duty of care owed to the victim; the breach of duty caused the death of the victim; and the breach of duty could be characterised as grossly negligent. In determining whether or not there had been gross negligence and whether this caused the death, it was not possible to aggregate the failures of various individuals. 4. Offences under the Health and Safety at Work etc. Act 1974 157. Section 3(1) reads as follows: “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.” 158. Section 33(1)(a) provides that it is an offence for a person to fail to discharge a duty to which he is subject by virtue of, inter alia, section 3 of the 1974 Act. B. Prosecutorial decisions 1. The CPS 159. In 1986 the CPS was established as an independent body to prosecute criminal cases in accordance with the Code. Pursuant to sections 1 and 3 of the Prosecution of Offences Act 1985, the DPP is the head of the CPS and operates independently under the superintendence of the Attorney General. As a government minister, the Attorney General is accountable to Parliament for the work of the CPS. 160. According to the Protocol between the Attorney General and the Prosecuting Departments (July 2009), other than in exceptional cases, decisions to prosecute are taken by prosecutors; the Attorney General will not seek to give a direction in an individual case save very exceptionally where necessary to safeguard national security. Moreover, it is a constitutional principle that in such exceptional cases the Attorney General acts independently of government, applying well-established prosecution principles of evidential sufficiency and public interest. 161. The circumstances in which the CPS will pursue a prosecution are governed by the 1985 Act and the Code. 2. The Prosecution of Offences Act 1985 162. Section 10 provides as follows. “(1) The [DPP] shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them ‑ (a) in determining, in any case ‑ (i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or (ii) what charges should be preferred; and (b) in considering, in any case, representations to be made by them to any magistrates ’ court about the mode of trial suitable for that case. (2) The Director may from time to time make alterations in the Code. ...” 3. The Code for Crown Prosecutors 163. The relevant sections read as follows. “ 5. THE FULL CODE TEST 5.1 The Full Code Test has two stages. The first stage is consideration of the evidence. If the case does not pass the evidential stage it must not go ahead no matter how important or serious it may be. If the case does pass the evidential stage, Crown Prosecutors must proceed to the second stage and decide if a prosecution is needed in the public interest. The evidential and public interest stages are explained below. THE EVIDENTIAL STAGE 5.2 Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘ realistic prospect of conviction ’ against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case. 5.3 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply. A court should only convict if satisfied so that it is sure of a defendant ’ s guilt. 5.4 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable. ... THE PUBLIC INTEREST STAGE 4.11 Accordingly, where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest. 4.12 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender ’ s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest. 4.13 Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed. ...” 164. An Explanatory Memorandum issued to prosecutors in 1994 provided that “4.14 Crown Prosecutors should resist the temptation to define the evidential test as ‘ a 51% rule ’. The CPS has always stated that weighing evidence (and the public interest) is not a precise science; it is therefore misleading to talk in terms of percentages – particularly to a single percentage point – because it implies that we can give individual pieces of evidence an exact weight and then add them up to reach a decision about prosecution. Crown Prosecutors should continue to avoid using any expressions which could convey the impression that the decision-making process is susceptible of very precise numerical definition. On the other hand, it is not unreasonable to talk of a conviction being ‘ more likely than not ’ .” 4. Judicial review of prosecutorial decisions 165. In R v. Director of Public Prosecutions, ex parte Manning ([2001] 1 QB 330) Lord Bingham of Cornhill CJ, giving the judgment of the court, stated as follows. “23. Authority makes clear that a decision by the [DPP] not to prosecute is susceptible to judicial review ... But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the [DPP] as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the [DPP] personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the [DPP ’ s] provisional decision is not to prosecute, the decision will be subject to review by senior Treasury counsel who will exercise an independent professional judgment. The [DPP] and his officials ... will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied. ...” C. The threshold evidential test for deciding whether to leave a case to the jury (“the Galbraith test”) 166. In R v. Galbraith ([1981] 1 WLR 1039) it was held that a court could not stop a prosecution if there was “some evidence”, even if it was “of a tenuous character”, for example, because of inherent weaknesses or vagueness or because it was inconsistent with other evidence. Moreover, if the strength or weakness depended on the view to be taken of a witness ’ s reliability, or other matters which were generally within the province of the jury and where “on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty”, then the judge should allow the matter to be tried by the jury. D. Inquests 1. Statutory basis 167. The law governing inquests is found in the Coroners Act 1988 and the Coroners Rules 1984. Section 11 of the Act provides that, at the end of an inquest, a coroner or jury must complete and sign an inquisition. Pursuant to section 11(5), an inquisition shall set out, so far as such particulars have been proved, who the deceased was and how, when and where the deceased came by his death. Neither the coroner nor the jury shall express any opinion on any other matters (Rule 36 § 2 (2)) and in particular “[n]o verdict shall be framed in such a way as to appear to determine any question of (a) criminal liability on the part of a named person, or (b) civil liability” (Rule 42). 168. Section 16(7) provides: “Where a coroner resumes an inquest which has been adjourned in compliance with subsection (1) above– (a) the finding of the inquest as to the cause of death must not be inconsistent with the outcome of the relevant criminal proceedings; ...” 2. Relevant case-law 169. In R (Middleton) v. West Somerset Coroner ([2004] 2 AC 182) the House of Lords considered the implications of Article 2 of the Convention on the interpretation of the Coroners Act and Rules. It concluded that an investigation should be capable of reaching a conclusion which resolved the central issues of fact in the case. Where a choice between “short-form” verdicts (unlawful killing, open verdict, lawful killing) was not capable of resolving those central issues, the inquest would not be Article 2 compliant. In such cases it might therefore be necessary for the judge or jury to return a narrative verdict, in order to be able to answer not only “by what means the deceased came by his death”, but also “in what circumstances”. 170. The refusal by a coroner to leave a particular short-form verdict to a jury is governed by R v. HM Coroner for Exeter, ex parte Palmer (unreported, 10 December 1997); R v. Inner South London Coroner, ex parte Douglas-Williams ([1999] 1 All ER); and R (Bennett) v. HM Coroner for Inner South London ([2007] EWCA Civ 617). 171. In Palmer the Court of Appeal stated that the coroner should not leave a verdict to a jury if it fell foul of the test used to determine a submission of “no case to answer” in criminal trials, namely that there was no evidence to support it or the evidence was so weak, vague or inconsistent with other evidence that, taken at its highest, a jury properly directed could not properly return that verdict (the Galbraith test). By contrast, if the strength or weakness of the evidence depended on the view to be taken of a witness ’ s reliability, then the verdict should be left to the jury. 172. In Douglas-Williams (cited above) the Court of Appeal clarified the extent of the discretion of a coroner not to leave to the jury what was, on the evidence, a possible verdict. Lord Woolf MR stated at p. 348: “If it appears there are circumstances which, in a particular situation, mean in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury, he need not leave that verdict. He, for example, need not leave all possible verdicts just because there is technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner ’ s conclusion he cannot be criticised if he does not leave a particular verdict.” 173. The Court of Appeal further clarified this in R (Bennett) (cited above). Waller LJ, giving the judgment of the court, considered that “there is some (if small) distinction between the position of a coroner deciding what verdict to leave to a jury after hearing all the evidence and that of a judge considering whether to stop a case after the conclusion of the prosecution case ”, that is, on a submission of no case to answer. At paragraph 30, he continued: “ ... coroners should approach their decision as to what verdicts to leave on the basis that facts are for the jury, but they are entitled to consider the question whether it is safe to leave a particular verdict on the evidence to the jury i.e. to consider whether a verdict, if reached, would be perverse or unsafe and to refuse to leave such a verdict to the jury. ” 174. A jury or coroner may only return a verdict of unlawful killing if satisfied beyond reasonable doubt that one or more persons unlawfully killed the deceased (see, inter alia, Bennett, and R (Sharman) v. HM Coroner for Inner North London [2005] EWHC 857 (Admin)). III. RELEVANT COMPARATIVE LAW A. Contracting States 175. From the information available to the Court, it would appear that, leaving aside the question of private prosecutions, in at least twenty-five Contracting States the decision to prosecute is taken by a public prosecutor. That is the case in Albania, Armenia, Austria, Azerbaijan, Bulgaria, the Czech Republic, Estonia, Finland, Georgia, Hungary, Iceland, Ireland, Italy, Latvia, the Republic of Moldova, Montenegro, Poland, Portugal, Romania, Russia, Serbia, Sweden, Switzerland, Turkey and Ukraine. In a further twelve Contracting States, the prosecutorial decision is first taken by a public prosecutor before being put before a judge and/or a court. This is the position in Belgium, Cyprus, France, Germany, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Malta, Monaco, Slovakia, Slovenia and Spain. 176. There is no uniform approach among Contracting States as to the threshold evidential test necessary to prosecute a case, although in at least twenty-four States a written threshold does exist. These States are Austria, Belgium, Bulgaria, the Czech Republic, Germany, Finland, France, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Switzerland and Turkey. 177. In one group of States, the threshold focuses on whether the elements of the offence have been made out; in the second group, it focuses on the chance of conviction by a court. However, these two categories are not watertight as it is not possible to say how prosecutors and judges apply the tests in practice. For example, a prosecutor applying a test based on the elements of the offence may also consider whether the strength or quality of evidence is sufficient for a conviction. 178. In addition to the respondent State, at least four countries fall into the second group: Austria, Iceland, the former Yugoslav Republic of Macedonia and Portugal. In Austria, the test is “the likelihood of conviction before the court”; in Iceland, it is whether the evidence is “sufficient or probable for conviction”; in the former Yugoslav Republic of Macedonia the test is whether there is “enough evidence from which [the prosecutor] can expect a conviction”; and finally, in Portugal, it is whether there is a “reasonable possibility of imposing a penalty at trial.” 179. In some States once the evidentiary threshold has been reached, the prosecutor must pursue the case. In Italy, for example, a decision to prosecute shall be taken if doubt as to the strength of the evidence could be rectified by new evidence presented at trial. In Germany, the principle of mandatory prosecution holds that “the public prosecution office shall be obliged to take action in relation to all prosecutable criminal offences, provided there are sufficient factual indications”. 180. In other States, the evidentiary threshold allows the prosecutor to bring a case, but does not compel prosecution. The practice in Ireland, for example, as defined by the Guidelines for Public Prosecutors, is “the prosecutor approaches each case first by asking whether the evidence is sufficiently strong to justify prosecuting. If the answer to that question is ‘ no ’, then a prosecution will not be pursued. If the answer is ‘ yes ’, before deciding to prosecute the prosecutor will ask whether the public interest favours a prosecution or if there is any public interest reason not to prosecute.” In Cyprus, even if there is sufficient evidence to pursue a prosecution, there is no legal obligation to do so. 181. The decision not to prosecute is susceptible of some form of judicial review or appeal to a court of law in at least eighteen Contracting States, namely Albania, Armenia, Austria, Azerbaijan, Belgium, France (albeit in limited circumstances), Ireland, Italy, Luxembourg, Malta, Monaco, Poland, Portugal, Russia, Spain, Switzerland, Turkey and Ukraine. In at least seven Contracting States, the decision of the prosecutor is normally contested before a hierarchical superior in the prosecution service with the final decision being susceptible of judicial review. These States include Bulgaria, Estonia, Germany, Lithuania, the Republic of Moldova, Romania and Slovakia. Finally, in at least twelve Contracting States there is no possibility of judicially reviewing the decision not to prosecute, although in some cases the decision may be contested to a hierarchical superior in the prosecution service. The States which do not permit judicial review include Cyprus, the Czech Republic, Finland, Georgia, Hungary, Iceland, Latvia, the former Yugoslav Republic of Macedonia, Montenegro, Serbia, Slovenia and Sweden. B. Common-law countries 182. In Australia, prosecutorial decisions are taken by the Office of the Director of Public Prosecutions which applies the Australian Prosecution Policy. The first criterion of this policy is that of evidential sufficiency, which is met if there is evidence sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the alleged offender. The existence of a bare prima facie case is not sufficient to justify prosecution. Once it is established that there is a bare prima facie case, it is then necessary to give consideration to the prospects of conviction. A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. 183. In New Zealand, the Solicitor-General has published prosecution guidelines that draw extensively on the Australian Prosecution Policy, the CPS Code for Crown Prosecutors, and guidelines developed by the Public Prosecution Service for Northern Ireland and the Director of Public Prosecutions in the Republic of Ireland. The test is in two parts: the evidential test and the public-interest test. The evidential test is met if “the evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction”. 184. In Canada, the Public Prosecution Service Deskbook sets the standard in relation to decisions to prosecute. The first criteria is the evidential test, which requires Crown counsel objectively to assess the whole of the evidence likely to be available at trial, including any credible evidence that would favour the accused, to determine whether there is a reasonable prospect of conviction. A reasonable prospect of conviction requires that there be more than a bare prima facie case; however, it does not require a probability of conviction (that is, that a conviction is more likely than not). 185. Finally, in the United States of America, the standard is whether there is “probable cause” to bring a prosecution, which means reasonable and objective grounds for belief in guilt. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 186. The applicant complained that the decision not to prosecute any individuals in respect of her cousin ’ s death was in breach of the procedural aspect of Article 2 of the Convention. 187. Article 2 provides as follows: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 188. The Government contested the applicant ’ s argument. A. Admissibility 189. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant ’ s submissions 190. The applicant did not complain that her cousin was killed by State agents in circumstances which breached Article 2 in its substantive aspect; consequently, she did not aver that his shooting was unlawful or that the conduct and planning of Operation THESEUS 2 was in breach of Article 2. Rather, her complaints fell solely under the procedural limb of Article 2 of the Convention and related solely to the fact that no individual police officer was prosecuted following the fatal shooting of Jean Charles de Menezes. 191. More specifically, she argued that: (a) the investigation into her cousin ’ s death fell short of the standard required by Article 2 of the Convention because the authorities were precluded from considering the reasonableness of the belief of Charlie 2 and Charlie 12 that the use of force was necessary; and (b) the prosecutorial system in England and Wales prevented those responsible for the shooting from being held accountable and, as a consequence, the procedural requirement under Article 2 of the Convention had not been satisfied. (i) The investigation 192. In the applicant ’ s submission, the test for self-defence under domestic law was lower than the standard required by Article 2 of the Convention. Under the law of England and Wales, an officer who used lethal force in self-defence would have a defence if he honestly but mistakenly believed he was under imminent threat, even, so she argued, if that belief was wholly unreasonable. However, the test applied by the Court required an honest belief to be supported by “good reasons”. Therefore, if the honest belief was mistaken, the use of force could only be justified if the person had good reasons for believing it was necessary based on what was seen and known by him or her at the time. 193. The applicant contended that, as the investigating authorities were applying a lower standard than that required by the Court, they were prevented from considering whether the use of force by Charlie 2 and Charlie 12 was or was not justified in the circumstances within the meaning of Article 2 of the Convention. In other words, the extent to which the domestic authorities were able to submit the actions of State agents to careful scrutiny was undermined, with the consequence that the State ’ s investigation was unable to secure accountability through a prosecution for a violation of Article 2 (see, for example, Vasil Sashov Petrov v. Bulgaria, no. 63106/00, § 52, 10 June 2010). 194. In the particular circumstances of the present case, the applicant contended that the authorities could not consider the reasonableness of the mistaken belief of Charlie 2 and Charlie 12 that Mr de Menezes posed a threat; nor were they required to analyse whether those officers had conducted both a careful assessment of the surrounding circumstances and an evaluation of the threat Mr de Menezes posed by his presence on the train. (ii ) The prosecutorial decisions 195. Although the applicant did not contend that there must always be a prosecution when there has been a death at the hands of a State agent, she submitted that there should be a prosecution where there was sufficient evidence to justify it. She argued that there had been sufficient evidence to justify the prosecution of a number of police officers involved in Operation THESEUS 2, but that flaws in the prosecutorial system in England and Wales had prevented the persons responsible for the death of her cousin from being held to account. 196. The applicant did not submit that prosecutors in England and Wales were not adequately independent for the purposes of Article 2 of the Convention. However, relying on Maksimov v. Russia (no. 43233/02, 18 March 2010), she criticised the fact that the prosecutor normally makes decisions without the benefit of oral testimony. She submitted that in cases like the present, where honesty and credibility were decisive, it was vital that the prosecutor should be in a position to assess the demeanour of witnesses giving oral evidence. 197. The applicant accepted that States were entitled to apply a threshold evidential test for permitting prosecutions to proceed, but contended that the threshold in England and Wales was too high. She accepted that “a realistic prospect of conviction” was used in some other States, particularly those with common-law legal systems, but she argued that in England and Wales this test had been interpreted to mean that a conviction should be more likely than not, that is, the chances of conviction were over fifty percent. She contended that the appropriate threshold should be the same as that used by the trial judge in deciding whether to allow a matter to be tried by a jury (the Galbraith test), namely, that there was “some evidence”, even if it was “of a tenuous character”, on which the jury could properly come to the conclusion that the defendant was guilty. 198. Although the applicant accepted that this was the same test applied by the coroner in deciding what short-form verdicts to leave to the jury, she argued that the CPS was wholly independent of the coroner and had not been bound by his decision. It could not, therefore, be said that a prosecutor applying the same test would have come to the same conclusion. In any case, the applicant had sought permission to judicially review the coroner ’ s decision but, by the time the Administrative Court considered her claim, the jury had already been directed. 199. In light of the absolute nature of Article 2, the applicant rejected any suggestion that there was a margin of appreciation in setting the threshold evidential test. However, even if there were, she submitted that the current threshold, which was substantially higher than the Galbraith test, was too high and therefore incompatible with Article 2 of the Convention. In particular she claimed that the threshold was set too high to maintain public confidence, to ensure adherence to the rule of law and to prevent any appearance of tolerance of or collusion in unlawful acts. Moreover, as the prosecutor could prevent a case from going to trial where there was sufficient evidence in the case for a jury properly to have convicted, there was a chance that life-endangering offences could go unpunished. 200. More particularly, the applicant argued that there was a substantial chance that life-endangering offences in fact had gone unpunished in the present case because, had the threshold evidential test been lower, there would have been sufficient evidence to have led to a prosecution of a number of officers, including Charlie 2 and Charlie 12 for murder, and Commander McDowall, Commander Dick, Trojan 84, Trojan 80, DCI C and “James” for gross negligence manslaughter. The fact that the inquest jury, having heard oral testimony, returned an open verdict indicated that they were not satisfied that, at the time they fired, Charlie 2 and Charlie 12 honestly believed that Mr de Menezes represented an imminent, mortal danger. 201. Relying on Enukidze and Girgvliani v. Georgia (no. 25091/07, § 274, 26 April 2011), the applicant submitted that the need to secure public confidence by ensuring accountability was particularly fundamental where a fatal shooting by a police officer was concerned and that confidence would be undermined by a perceived failure to prosecute public officials who were alleged to have violated Article 2 of the Convention. Consequently, it would be permissible to have a lower threshold for prosecutions for serious breaches of Convention rights by State agents than for other offences. 202. The applicant further alleged that the level of scrutiny that the domestic courts applied to a decision not to prosecute was incompatible with Article 2 of the Convention. This was because, pursuant to the dicta in Manning, even if a court considering a claim for judicial review concluded that a prosecution was likely to succeed, it would only have to order such prosecution if there had been an error of law. Such approach was inconsistent with Article 2 of the Convention. 203. In the alternative, the applicant argued that even if individual prosecutions were not required in the present case, the prosecution of the OCPM had not amounted to an adequate acknowledgment of responsibility on the part of the State, as the offence under the Health and Safety at Work etc. Act 1974 was established if there was a possibility of danger instead of actual danger, that is, since proof of actual harm was unnecessary to establish the offence, it was not necessary for the domestic court to determine whether any breach of duty in fact caused the death of Mr de Menezes. Consequently, despite the serious criticisms made in the IPCC report, and the verdict of the inquest jury, no individual or organisation had been held to account for Mr de Menezes ’ death. 204. Although the applicant accepted that she could have brought a private prosecution, she argued that this would not have addressed her complaints because it was clear from the Court ’ s case-law that it was the State that had the responsibility for complying with Article 2. 205. The applicant further submitted that disciplinary proceedings could not, by themselves, have complied with Article 2 of the Convention as they were essentially administrative proceedings intended to govern future employment. Where serious breaches of the Convention were concerned, effective protection had to be provided by the criminal law because the sanctions available were more punitive and had better deterrents than disciplinary proceedings. In a case such as the present, disciplinary proceedings could not have satisfied the procedural obligation under Article 2 of the Convention because there would have been a manifest disproportion between the gravity of the act and the punishment available. 206. More particularly, the applicant contended that police disciplinary proceedings in the United Kingdom were often not sufficiently independent to satisfy the procedural limb of Article 2, as it was usually the Chief Officer of the officer ’ s own force who took all the key steps in the investigation, and the members of the panel which conducted the proceedings could also be from the same force. The proceedings were not conducted in public and at the time of Mr de Menezes ’ death police officers could avoid the disciplinary process by resigning. (b) The Government ’ s submissions (i ) The investigation 207. The Government argued that the formulation of the law of self-defence in England and Wales struck an appropriate balance between permitting the use of force to prevent lethal attacks on the public and ensuring that any individuals who may be exposed to a real and immediate risk to life by any operational measures were protected. In doing so, it recognised that it was not for the courts, with the benefit of detached reflection, to substitute their own opinion for that of a police officer required to act in the heat of the moment. 208. More particularly, the Government contended that the test of “absolute necessity” in Article 2 § 2 of the Convention ought to be assessed from the standpoint of the person wielding lethal force in self-defence without any requirement of reasonableness by reference to objectively established facts, that is, a person ought to be criminally liable for causing death only where he was aware that in the circumstances his conduct was not absolutely necessary. This was supported by the Court ’ s case-law, which provided that the use of force might be justified where it was based on an honest belief, perceived for good reasons, to be valid at the time ( McCann and Others v. the United Kingdom, 27 September 1995, § 200, Series A no. 324; Andronicou and Constantinou v. Cyprus, 9 October 1997, § 192, Reports of Judgments and Decisions 1997 ‑ VI; and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 178, ECHR 2011). The honest belief did not have to be shown to be reasonable by reference to objectively established facts, although the objective reasonableness of the belief would nevertheless be relevant in determining whether or not it was genuinely held. An honest belief could be held for good reasons even if, objectively, another person might consider the belief to be irrational or based on either a flawed premise or faulty perceptions. 209. Finally, the Government argued that the applicant ’ s proposed change to the law could have far-reaching and counter-productive effects. In particular, if officers were liable to prosecution even when their use of force was legitimate based on their honest beliefs at the time, there could be a chilling effect on the willingness of officers to carry out essential duties where they might be required to act in the heat of the moment to avert a danger to life. Consequently, it could have a profoundly detrimental effect on their ability to act in defence of their own lives and the lives of others. (ii ) The prosecutorial decisions 210. The Government argued that as the investigative obligation was one of means and not result, Article 2 only required a prosecution where it was justified by the findings of the investigation. The effectiveness of the investigation could not therefore be assessed only by reference to whether it resulted in criminal or disciplinary proceedings against individuals. An effective investigation, carried out against an appropriate framework of criminal law, could lead to the conclusion that such proceedings would not be justified. 211. Thus, the fact that no individual officer was prosecuted was not, properly viewed, a specific ground of complaint; the crucial question was why there were no individual prosecutions. In the present case, the reason was that none of the independent authorities who reviewed the case concluded that there was sufficient evidence to justify a prosecution for murder or manslaughter. All necessary measures had been taken to discharge the Article 2 duty and in such a case it was not for the Court to substitute its own assessment of the facts for those of the domestic authorities and courts ( Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). 212. With regard to prosecutorial decisions in England and Wales, the Government submitted that the CPS was an independent prosecution service. Although in certain other legal systems this function was carried out by judicial officers, such a system was not mandated by the Convention. On the contrary, Article 2 merely required that such decisions were taken independently on the basis of a thorough review of the evidence. Furthermore, the applicant was wrong to say that a decision was taken by the CPS without the benefit of hearing witnesses. In taking its decision, the CPS had the benefit of all the materials generated by the IPCC during its investigation, including witness statements, and it carried out a review of its decision following the inquest, during which all the key witnesses had given oral evidence. 213. The Government further argued that the current threshold evidential test did not require prosecutors to be satisfied that there was a fifty percent or more prospect of conviction. The Explanatory Memorandum issued to prosecutors in 1994 made it clear that although it was not unreasonable to talk about a conviction being “more likely than not”, they should “resist the temptation to define the evidential test as ‘ a 51% rule ’ ” (see paragraph 164 above). This was because it was impossible to measure with arithmetical precision the probability or likelihood of a particular outcome in a criminal case as there were many variable factors and elements of complexity and uncertainty that defied accurate calculation. 214. The correct test was whether or not there was a “realistic prospect of conviction” against each suspect on each charge; in other words, whether a reasonable and impartial court, properly directed and acting in accordance with the law, was more likely than not to convict the defendant of the charge(s) alleged. A “merits based” approach was therefore applied, in which the prosecutor essentially asked himself whether, on balance, the evidence was sufficient to merit a conviction taking into account what he or she knew about the defence case. In reaching a decision the prosecutor was required to undertake a thorough and conscientious review of the case and it was only when he or she considered on balance that the evidence was not sufficient to merit conviction that the case would not be prosecuted. 215. The Galbraith test, on the other hand, was a very low threshold which would be met where there was “some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence”. In the Government ’ s view, if the Galbraith test were the threshold evidential test, prosecutions would have to be brought in cases where there was no realistic prospect of conviction and where the prosecutor considered that the case was unfounded. 216. In any case, the Government noted that even if the threshold evidential test had been the Galbraith test, it would not necessarily have led to the prosecution of any individual officer. The Galbraith test was also the test used by coroners in deciding whether to leave a verdict to a jury at an inquest. Furthermore, the elements of the inquest verdict of unlawful killing were precisely the same as the elements of the crimes which the CPS had to consider in taking the decision on criminal charges. However, in the present case, after hearing all the relevant witnesses cross-examined at length, the coroner weighed the evidence against the Galbraith threshold and decided that it was not met. 217. Moreover, the Government submitted that in England and Wales the threshold evidential test had been the subject of frequent and anxious consideration through public consultation and political scrutiny. Detailed reviews of the Code for Crown Prosecutors were carried out in 2003, 2010 and 2012 and during those reviews the threshold evidential test had not been subject to substantive criticism by the Equality and Human Rights Commission (EHRC) or any of the human rights organisations with an interest in criminal law. In the 2003 review the then Attorney General specifically considered whether a lower threshold should apply to deaths in custody but found little, if any, support for such an approach as it would be unfair – and inconsistent – to subject potential defendants in such cases to the burden of prosecution in the absence of a realistic prospect of conviction. Public confidence was maintained by prosecuting where the evidence justified it, and not prosecuting where it did not. 218. In light of the fact that the threshold evidential test had been given careful and anxious scrutiny, the Government argued that it should be accorded a significant margin of appreciation in assessing the appropriate evidential thresholds for the initiation and continuation of criminal proceedings in all cases. 219. This was particularly important in light of the primacy of the jury in the United Kingdom criminal justice system. Once a case was prosecuted, the trial judge could not remove it from the jury if the Galbraith test was satisfied, that is, if there was some evidence, however tenuous, on which the jury could properly come to the conclusion that the defendant was guilty. The trial judge could not, therefore, act as a filter for unmeritorious cases, and a higher threshold evidential test for bringing prosecutions was necessary to ensure that the emotional and financial costs of trial were not incurred simply because there was a bare possibility of conviction. In other words, it was particularly important to weed out weak cases at an early stage because cases which did go to trial were usually pursued right to the end. 220. The Government also noted that significant procedural protections had been built into CPS practices in cases of police shootings or deaths in custody: the prosecutor had to write to the family of the victim to explain any decision; the family had to be offered a meeting with the prosecutor to explain the decision; all charging decisions had to be reviewed personally by the DPP and, if there was a decision not to proceed, if it was not plain beyond all doubt that there was no case to answer, advice had to be sought from senior independent counsel. In addition, since June 2013 the victim has had the right to request a review of the CPS decision, first by the local CPS office that made the decision, and then by means of an independent review by either the CPS Appeals and Review Unit or by the relevant CPS Chief Crown Prosecutor. 221. Although the Government accepted that in practice prosecution of State agents for causing death were rare, they did not consider this to be a cause for concern. Fatalities caused by armed police officers did not normally require the prosecution of the officer. In England and Wales a rigorous approach to the use of firearms was adopted; in particular, firearms officers were subjected to a high level of screening, training, guidance and monitoring to ensure that they only discharged firearms when it was absolutely necessary to do so. This is evidenced by the statistics: from 2003/04 to 2012/13, the annual number of police operations in which the use of firearms was authorised ranged from 10,996 (in 2012/13) to 19,595 (in 2007/08). However, during the same period the annual number of incidents in which conventional firearms were discharged ranged from three (in 2006/07 and 2012/13) to nine (in 2005/06). 222. The Government further argued that the remedy of judicial review was not intended to provide an appeal system on the merits of the prosecutorial decision. In this regard, the primary protection lay not with the judiciary but in the requirement that the initial decision be taken by an independent and qualified prosecutor exercising an impartial judgment based on a public and accessible policy, subject to scrutiny by the DPP. On an application for judicial review, the Administrative Court retained the power to intervene where a decision not to prosecute was based on an error of law or was otherwise irrational or procedurally flawed. 223. Finally, the Government submitted that a real tension existed between the paradigm of criminal culpability based on individual responsibility and the increasing recognition of the potential for harm inherent in large-scale or complex activity where no one person was wholly to blame for what went wrong. Cases such as McCann and Others, cited above, indicated that it might be simplistic to attribute an Article 2 breach to the individuals who directly caused the death, especially in a case such as the present where the death resulted from failures in the overall system. In such cases, it would be inaccurate and unfair to ascribe blame to the individuals who happened to form the last link in the chain. It could also be dangerous, diverting attention away from the real problems in the system which could then go unremedied and create risks to life in future. The prosecution of the OCPM, on the other hand, enabled the issues of planning and execution to be directly addressed in the context of a criminal trial. (c) The third-party intervener ’ s submissions (i) The investigation 224. The EHRC argued that the criminal-law provisions of England and Wales failed to ensure accountability for deaths occurring under the State ’ s responsibility. In particular, they submitted that the definition of self-defence in English law was drawn very widely, was partially subjective and was inconsistent with Article 2 of the Convention. The clear and constant case-law of the Court is that an “honest belief” must be founded on “good reason”; to permit State officials to escape punishment in criminal proceedings based on an honest but objectively unjustifiable belief was incompatible with the strict requirements of Article 2 of the Convention. The use of force should therefore be objectively justifiable, that is, law-enforcement officers should be required to make reasonable attempts to ascertain the true facts before using lethal force. (ii ) The prosecutorial decisions 225. The EHRC further submitted that the criminal-law provisions in England and Wales were inadequate because the threshold evidential test for bringing prosecutions was too high. Although the State should not be obliged to prosecute hopeless cases, it was arbitrary to set the test as high as it currently was and there could be no objection in principle if it were lower. Like the applicant, the EHRC also considered the Galbraith test to be a more appropriate threshold evidential test for bringing a prosecution. 226. The EHRC argued that aligning the threshold evidential test for bringing a prosecution with that for leaving a case to the jury would not require the prosecution of every case of a potential violation of Article 2, no matter how weak the evidence. Hopeless or legally unmeritorious cases would not cross this threshold. However, a case which had an assessed forty-nine percent chance of conviction could not sensibly be described as one with little prospect of conviction. A criminal justice system which operated so as to preclude trial in circumstances where evidence existed upon which a properly directed jury could lawfully convict was not one which secured the full accountability required by Article 2. 227. Moreover, the lowering of the threshold evidential test in Article 2 cases involving killing by State agents would not involve any irreversible prejudice. Every trial was thoroughly reviewed at the close of the prosecution case and the judge was duty bound to withdraw the case upon a successful submission of no case to answer, that is, if a properly directed jury on one view of the facts could not lawfully convict. If the threshold evidential test for bringing a prosecution were lowered, at worst some cases which would not be prosecuted under the existing test would be withdrawn by the judge at the close of the prosecution case. At best, some which would not have been brought to trial at all under the existing test might result in convictions of State agents for culpable homicide. 228. In support of their submissions, the EHRC noted that between 1990 and 2014 there were fifty-five deaths caused by police shootings in England and Wales. However, since 1990 there has been no criminal conviction of an armed officer, even in those cases where an inquest jury recorded a verdict of unlawful killing. Indeed, between 1993 and 2005 there were thirty fatalities and only two prosecutions. 2. The Court ’ s assessment (a) The procedural requirement in cases concerning the use of lethal force by State agents 229. Having regard to its fundamental character, Article 2 of the Convention contains a procedural obligation – as described below – to carry out an effective investigation into alleged breaches of its substantive limb (see Ergi v. Turkey, 28 July 1998, § 82, Reports 1998 ‑ IV; Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII; Giuliani and Gaggio, cited above, § 298; and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 69, 14 April 2015 ). 230. A general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, taken in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State (see McCann and Others, cited above, § 161). The State must therefore ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Zavoloka v. Latvia, no. 58447/00, § 34, 7 July 2009, and Giuliani and Gaggio, cited above, § 298). 231. The State ’ s obligation to carry out an effective investigation has in the Court ’ s case-law been considered as an obligation inherent in Article 2, which requires, inter alia, that the right to life be “protected by law”. Although the failure to comply with such obligation may have consequences for the right protected under Article 13, the procedural obligation of Article 2 is seen as a distinct obligation (see İlhan v. Turkey [GC], no. 22277/93, §§ 91-92, ECHR 2000-VII; Öneryıldız v. Turkey [GC], no. 48939/99, § 148, ECHR 2004-XII; and Šilih v. Slovenia [GC], no. 71463/01, §§ 153-54, 9 April 2009). It can give rise to a finding of a separate and independent “interference”. This conclusion derives from the fact that the Court has consistently examined the question of procedural obligations separately from the question of compliance with the substantive obligation (and, where appropriate, has found a separate violation of Article 2 on that account) and the fact that on several occasions a breach of a procedural obligation under Article 2 has been alleged in the absence of any complaint as to its substantive aspect (see Šilih, cited above, §§ 158 ‑ 59). 232. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999 ‑ III; Giuliani and Gaggio, cited above, § 300; and Mustafa Tunç and Fecire Tunç, cited above, § 177 ). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports 1998 ‑ IV; Giuliani and Gaggio, cited above, § 300; and Mustafa Tunç and Fecire Tunç, cited above, § 177 ). What is at stake here is nothing less than public confidence in the State ’ s monopoly on the use of force (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 106, 4 May 2001; Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007 ‑ II; and Giuliani and Gaggio, loc. cit.). 233. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others, cited above, § 324, and Mustafa Tunç and Fecire Tunç, cited above, § 172 ). This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible (see Giuliani and Gaggio, cited above, § 301, and Mustafa Tunç and Fecire Tunç, cited above, § 172 ). This is not an obligation of result, but of means (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII; Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014; and Mustafa Tunç and Fecire Tunç, cited above, § 173). The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death (as regards autopsies, see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; on the subject of witnesses, see, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; and, as regards forensic examinations, see, for example, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Moreover, where there has been a use of force by State agents, the investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances (see, for example, Kaya v. Turkey, 19 February 1998, § 87, Reports 1998-I). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Avşar v. Turkey, no. 25657/94, §§ 393-95, ECHR 2001 ‑ VII); Giuliani and Gaggio, cited above, § 301; and Mustafa Tunç and Fecire Tunç, cited above, § 174 ). 234. In particular, the investigation ’ s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation ’ s ability to establish the circumstances of the case and the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009, and Mustafa Tunç and Fecire Tunç, cited above, § 175 ). Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation ’ s effectiveness depend on the circumstances of the particular case. The nature and degree of scrutiny must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velcea and Mazăre v. Romania, no. 64301/01, § 105, 1 December 2009, and Mustafa Tunç and Fecire Tunç, cited above, § 175 ). Where a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigation (see Enukidze and Girgvliani, cited above, § 277). 235. In addition, the investigation must be accessible to the victim ’ s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Hugh Jordan, cited above, § 109; Giuliani and Gaggio, cited above, § 303; and Mustafa Tunç and Fecire Tunç, cited above, § 179; see also Güleç, cited above, § 82, where the victim ’ s father was not informed of the decision not to prosecute, and Oğur, cited above, § 92, where the family of the victim had no access to the investigation or the court documents). 236. However, disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects on private individuals or other investigations and therefore cannot be regarded as an automatic requirement under Article 2. The requisite access of the public or the victim ’ s relatives may therefore be provided for in other stages of the procedure (see, among other authorities, McKerr v. the United Kingdom, no. 28883/95, § 129, ECHR 2001-III, and Giuliani and Gaggio, cited above, § 304). Moreover, Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (see Velcea and Mazăre, cited above, § 113, and Ramsahai and Others, cited above, § 348). 237. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports 1998-VI, and Kaya, cited above, §§ 106-07). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr, cited above, §§ 111 and 114, and Opuz v. Turkey, no. 33401/02, § 150, ECHR 2009). 238. It cannot be inferred from the foregoing that Article 2 may entail the right to have third parties prosecuted or sentenced for a criminal offence (see Mastromatteo, cited above, § 90; Šilih, cited above, § 194; and Giuliani and Gaggio, cited above, § 306) or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see Zavoloka, cited above, § 34 (c)). Indeed, the Court will grant substantial deference to the national courts in the choice of appropriate sanctions for homicide by State agents. Nevertheless, it must still exercise a certain power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed (see Kasap and Others v. Turkey, no. 8656/10, § 59, 14 January 2014; A. v. Croatia, no. 55164/08, § 66, 14 October 2010; and Ali and Ayşe Duran v. Turkey, no. 42942/02, § 66, 8 April 2008 ). 239. Where the official investigation leads to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect the right to life through the law. In this regard, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished (see, for example, Öneryıldız, cited above, § 95, and Giuliani and Gaggio, cited above, § 306 ). The Court ’ s task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined (see Mileusnić and Mileusnić-Espenheim v. Croatia, no. 66953/09, § 66, 19 February 2015, and Öneryıldız, cited above, § 96). (b) Application to the present case 240. As can be seen from the general principles set out above, the Court has, in its case-law, established a number of requirements for an investigation into the use of lethal force by State agents to be “effective”. In summary, those responsible for carrying out the investigation must be independent from those implicated in the events; the investigation must be “adequate”; its conclusions must be based on thorough, objective and impartial analysis of all relevant elements; it must be sufficiently accessible to the victim ’ s family and open to public scrutiny; and it must be carried out promptly and with reasonable expedition. 241. In the present case the applicant has not complained generally about the investigation, which was conducted by an independent body (the IPCC). In the course of the investigation, the IPCC secured the relevant physical and forensic evidence (more than 800 exhibits were retained), sought out the relevant witnesses (nearly 890 witness statements were taken), followed all obvious lines of enquiry and objectively analysed all the relevant evidence (see paragraph 49 above). Moreover, the deceased ’ s family were given regular detailed verbal briefings on the progress of the investigation and, together with their legal representatives, they were briefed on the IPCC ’ s conclusions (see paragraph 49 above). They were also fully briefed on the CPS ’ s conclusions (notably by means of a fifty-page Review Note and a follow-up final Review Note (see paragraphs 77, 79 and 133 above)), they were able to judicially review the decision not to prosecute, and they were represented at the inquest at the State ’ s expense, where they were able to cross-examine the seventy-one witnesses called and make representations. 242. Although there was some delay in handing the scene of the incident to the IPCC – a delay the IPCC criticised (see paragraph 56 above) – the applicant has not complained about it and there is nothing to suggest that the delay compromised the integrity of the investigation in any way, which on the whole was carried out promptly and with reasonable expedition. The DPS, an independent section of the MPS, was notified of the shooting within an hour of its occurrence and its officers were able to ensure the integrity of the scene in the early stages of the investigation (see paragraph 40 above). Furthermore, while the IPCC identified issues which could have been addressed earlier had it been notified immediately (for example, the concern over the CCTV tapes at Stockwell underground station, the missing hard drives on the train, and the possible alteration of the surveillance log – see paragraph 56 above), none of these issues proved to be central to the investigation which followed. 243. In the Court ’ s view, the above considerations are important to bear in mind when considering the proceedings as a whole, in view of the applicant ’ s specific complaints which solely concern certain aspects of the adequacy of the investigation. As set out in the general principles above, in order to be “adequate” the investigation must be capable of leading to a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible. Having regard to the facts of the present case, the applicant contends (a) that the investigating authorities were unable to assess whether the use of force was justified because they were precluded from considering whether the apparently honest belief of Charlie 2 and Charlie 12 that the use of force was necessary was also a reasonable one; and (b) that deficiencies in the criminal justice system in England and Wales undermined the investigation ’ s ability to lead to the punishment of those responsible. (i) Adequacy of the investigation: were the authorities able properly to consider whether the use of force was justified? ( α ) The test applied by the Court 244. The test consistently applied by the Court in determining whether the use of lethal force was justified is set out in McCann and Others (cited above, § 200). “[T]he use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.” 245. The Government have argued that the reasonableness of a belief in the necessity of lethal force should be determined subjectively. Although the applicant has accepted this, the third-party intervener has submitted that an honest belief should be assessed against an objective standard of reasonableness. It is, however, apparent both from the application of the stated test to the particular facts in McCann and Others itself and from the Court ’ s post McCann and Others case-law that the existence of “good reasons” should be determined subjectively. In a number of cases the Court has expressly stated that, as it is detached from the events in issue, it cannot substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life or the lives of others; rather, it must consider the events from the viewpoint of the person(s) acting in self-defence at the time of those events (see, for example, Bubbins v. the United Kingdom, no. 20196/99, § 139, ECHR 2005-II, and Giuliani and Gaggio, cited above, §§ 179 and 188). Consequently, in those Article 2 cases in which the Court specifically addressed the question of whether a belief was perceived, for good reasons, to be valid at the time, it did not adopt the standpoint of a detached observer; instead, it attempted to put itself into the position of the person who used lethal force, both in determining whether that person had the requisite belief and in assessing the necessity of the degree of force used (see, for example, Makaratzis v. Greece [GC], no. 50385/99, §§ 65-66, ECHR 2004 ‑ XI; Oláh v. Hungary (dec.), no. 56558/00, 14 September 2004; and Giuliani and Gaggio, cited above, § 189). 246. Moreover, in applying this test the Court has not treated reasonableness as a separate requirement but rather as a relevant factor in determining whether a belief was honestly and genuinely held. In McCann and Others the Court identified the danger of imposing an unrealistic burden on law ‑ enforcement personnel in the execution of their duty. It therefore found no violation of Article 2 because the soldiers “honestly believed, in the light of the information that they had been given ... that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life” (see McCann and Others, cited above, § 200). A similar approach – that is, one focusing primarily on the honesty of the belief – can be seen in many other cases, including Andronicou and Constantinou (cited above, § 192), Bubbins (cited above, § 140), Golubeva v. Russia (no. 1062/03, § 102, 17 December 2009), Wasilewska and Kałucka v. Poland (nos. 28975/04 and 33406/04, § 52, 23 February 2010) and Giuliani and Gaggio (cited above, § 189). 247. In this regard, it is particularly significant that the Court has never found that a person purporting to act in self-defence honestly believed that the use of force was necessary but proceeded to find a violation of Article 2 on the ground that the belief was not perceived, for good reasons, to be valid at the time. Rather, in cases of alleged self-defence it has only found a violation of Article 2 where it refused to accept that a belief was honest (see, for example, Akhmadov and Others v. Russia, no. 21586/02, § 101, 14 November 2008, and Suleymanova v. Russia, no. 9191/06, § 85, 12 May 2010) or where the degree of force used was wholly disproportionate (see, for example, Gül, cited above, §§ 82-83). 248. It can therefore be elicited from the Court ’ s case-law that in applying the McCann and Others test the principal question to be addressed is whether the person had an honest and genuine belief that the use of force was necessary. In addressing this question, the Court will have to consider whether the belief was subjectively reasonable, having full regard to the circumstances that pertained at the relevant time. If the belief was not subjectively reasonable (that is, it was not based on subjective good reasons), it is likely that the Court would have difficulty accepting that it was honestly and genuinely held. ( β ) Compatibility of the test applied in England and Wales 249. In the present case the coroner described the test to be applied as follows (see paragraph 106 above). “Did the officer honestly and genuinely believe that it was necessary for him to use force in defence of himself and/or others? This is a question of subjective belief. Even if the belief was mistaken, and even if the mistake was unreasonable, the defence can still run. The reasonableness of the belief is only relevant in helping the jury to decide whether the belief was honestly held.” 250. Although the Court has previously considered the compatibility of this test with Article 2 of the Convention, those cases do not assist the Court in its consideration of the one at hand. It is true that in Bennett v. the United Kingdom ((dec.), no. 5527/08, 7 December 2010) the Court expressly found that there was “no sufficiently great difference between the English definition of self-defence and the ‘ absolute necessity ’ test for which Article 2 provides”. However, the issue in Bennett was whether the test applied by the coroner, namely that the use of lethal force should be “reasonably justified”, was compatible with the “absolute necessity” requirement in Article 2 of the Convention. The Court was not, therefore, called upon to consider the compatibility of domestic law with the requirement that an honest belief be perceived, for good reasons, to be valid at the time. The issue did arise in Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000 ‑ I), in which the Court found that the approach taken by the domestic judge was compatible with the principles established in McCann and Others. However, the approach of the domestic judge in Caraher differs somewhat from the one adopted in the present case, and the Government have accepted the latter to be an accurate reflection of domestic law. 251. It is clear both from the parties ’ submissions and the domestic decisions in the present case that the focus of the test for self-defence in England and Wales is on whether there existed an honest and genuine belief that the use of force was necessary. The subjective reasonableness of that belief (or the existence of subjective good reasons for it) is principally relevant to the question of whether it was in fact honestly and genuinely held. Once that question has been addressed, the domestic authorities have to ask whether the force used was “absolutely necessary”. This question is essentially one of proportionality, which requires the authorities to again address the question of reasonableness, that is, whether the degree of force used was reasonable, having regard to what the person honestly and genuinely believed (see paragraphs 148 - 55 above). 252. So formulated, it cannot be said that the test applied in England and Wales is significantly different from the standard applied by the Court in McCann and Others and in its post McCann and Others case-law (see paragraphs 244 ‑ 48 above). Bearing in mind that the Court has previously declined to find fault with a domestic legal framework purely on account of a difference in wording which can be overcome by the interpretation of the domestic courts (see Perk and Others v. Turkey, no. 50739/99, § 60, 28 March 2006, and Giuliani and Gaggio, cited above, §§ 214-15), it cannot be said that the definition of self-defence in England and Wales falls short of the standard required by Article 2 of the Convention. 253. It is also clear that in the present case all the independent authorities considering the actions of Charlie 2 and Charlie 12 carefully examined the subjective reasonableness of their belief that Jean Charles de Menezes was a suicide bomber who might detonate a bomb at any second. In the Stockwell One Report the IPCC noted that the actions of Charlie 2 and Charlie 12 should be considered in light of the day ’ s events and those of the previous two weeks. In particular, it had regard to the SFO ’ s briefing, the positive identification of Mr de Menezes by the surveillance teams, the decision to go to State Red when the SFOs arrived at Stockwell, and the DSO ’ s order to “stop” Mr de Menezes (see paragraph 60 above). 254. The CPS also had regard to the fact that the events at Stockwell “ happened in a matter of seconds” and there was “some independent evidence that supports the officers ’ accounts that they feared Jean Charles might detonate a bomb” (see paragraph 78 above). The CPS further noted that if Charlie 2 and Charlie 12 did genuinely believe that they were acting in self-defence, then the actions that they took in shooting Mr de Menezes dead would be reasonable and not unlawful (see paragraph 83 above). 255. Similarly, the coroner made it clear that he had to consider the reasonableness of the belief of Charlie 2 and Charlie 12 that the use of force was necessary in order to decide whether or not it was honestly and genuinely held (see paragraph 106 above). 256. Consequently, it cannot be said that the domestic authorities failed to consider, in a manner compatible with the requirements of Article 2 of the Convention, whether the use of force by Charlie 2 and Charlie 12 was justified in the circumstances. (ii) Adequacy of the investigation: was it capable of identifying and – if appropriate – punishing those responsible? 257. Although the authorities should not, under any circumstances, be prepared to allow life-endangering offences to go unpunished, the Court has repeatedly stated that the investigative obligation under Article 2 of the Convention is one of means and not result (see paragraph 233 above). In older cases, the Court stated that “the investigation should be capable of leading to the identification and punishment of those responsible” (see Oğur, cited above, § 88). However, in more recent case-law this requirement has been further refined so as to require that the investigation be “capable of leading to a determination of whether the force used was or was not justified in the circumstances ... and of identifying and – if appropriate – punishing those responsible” (see Giuliani and Gaggio, cited above, § 301; see also Mustafa Tunç and Fecire Tunç, cited above, § 172 ). It therefore follows that Article 2 does not entail the right to have third parties prosecuted – or convicted – for a criminal offence (see Mastromatteo, cited above, § 90, and Šilih, cited above, § 194). Rather, the Court ’ s task, having regard to the proceedings as a whole, is to review whether and to what extent the domestic authorities submitted the case to the careful scrutiny required by Article 2 of the Convention (see Öneryıldız, cited above, § 95). 258. As noted at paragraph 241 above, there is nothing before the Court to suggest that in the present case the domestic authorities failed to secure the relevant physical or forensic evidence, or to seek out relevant witnesses or relevant information. Furthermore, the secured evidence was thoroughly analysed and assessed by the IPCC, an independent investigatory body which took witness statements from nearly 890 people and collected more than 800 exhibits; by the CPS; by a judge and jury during the criminal trial of the OCPM, at which forty-seven witnesses were called to give evidence; and by a coroner and jury during the inquest at which seventy-one witnesses were called (see paragraphs 45 - 71, 77-101 and 103 - 27 ). The applicant has not sought to argue the contrary. Therefore, the sole issue before the Court is whether the decision not to prosecute individual officers, and to prosecute only the OCPM in its capacity as an employer of police officers, could itself constitute a procedural breach of Article 2 of the Convention. 259. To date, the Court has not faulted a prosecutorial decision which flowed from an investigation which was in all other respects Article 2 compliant. In fact, it has shown deference to Contracting States both in organising their prosecutorial systems and in taking individual prosecutorial decisions. In Kolevi (cited above) the Court made it clear that “[it] is not oblivious to the fact that a variety of State prosecution systems and divergent procedural rules for conducting criminal investigations may be compatible with the Convention, which does not contemplate any particular model in this respect ... Independence and impartiality in cases involving high-ranking prosecutors or other officials may be secured by different means, such as investigation and prosecution by a separate body outside the prosecution system, special guarantees for independent decision-making despite hierarchical dependence, public scrutiny, judicial control or other measures. It is not the Court ’ s task to determine which system best meets the requirements of the Convention. The system chosen by the member State concerned must however guarantee, in law and in practice, the investigation ’ s independence and objectivity in all circumstances and regardless of whether those involved are public figures.” ( § 208) 260. Likewise, in Brecknell v. the United Kingdom (no. 32457/04, § 81, 27 November 2007), although the Court held that the initial investigative response lacked the requisite independence (and was therefore in breach of the procedural limb of Article 2), it found no grounds on which to criticise a decision not to prosecute where it was not “apparent that any prosecution would have any prospect of success” and where it could not “impugn the authorities for any culpable disregard, discernible bad faith or lack of will”. In Brecknell the application was lodged nearly three decades after the death in issue; nevertheless, it clearly demonstrates the Court ’ s reluctance to interfere with a prosecutorial decision taken in good faith following an otherwise effective investigation. 261. That being said, the Court has, on occasion, accepted that “institutional deficiencies” in the criminal justice or prosecutorial system may breach Article 2 of the Convention. In Kolevi (cited above, § 209) the Court found that such deficiencies in the prosecutorial system resulted in the absence of sufficient guarantees for an independent investigation into offences potentially committed by the Chief Public Prosecutor. In particular it found that the centralised structure of the prosecutorial system made it “practically impossible to conduct an independent investigation into circumstances implicating [the Chief Public Prosecutor]”. Although there was no such obstacle to an effective investigation in the present case, the applicant has argued that there were other obstacles preventing any meaningful prosecutions. If such obstacles existed, they could enable life-endangering offences to go unpunished and, as such, give rise to the appearance of State tolerance of – or collusion in – unlawful acts. Consequently, it will be necessary for the Court to consider each of the applicant ’ s submissions in turn in order to determine whether there were any “institutional deficiencies” giving rise to a procedural breach of Article 2 of the Convention. ( α ) The CPS 262. In England and Wales the decision whether to prosecute is taken by a prosecutor in the CPS. The Government have asserted – and the applicant has not contested – that the CPS was independent for the purposes of Article 2 of the Convention. In serious cases such as the one at hand, the decision is taken by a senior prosecutor having first taken independent legal advice. The Court has never stated that the prosecutorial decision must be taken by a court (see, for example, Hugh Jordan, cited above, §§ 122-24, in which the Court did not take issue with the fact that the prosecutorial decision was taken by a public official). Indeed, in at least twenty-five Contracting States the decision to prosecute is taken by a public prosecutor (see paragraph 175 above). Consequently, the fact that the decision is taken by a public official is not problematic in and of itself, provided that there are sufficient guarantees of independence and objectivity. 263. Furthermore, the Court does not consider that Maksimov (cited above) can be interpreted as authority for the proposition that prosecutors should hear oral testimony from witnesses before taking decisions. In that case, the prosecutorial decision had been taken without any independent investigatory body hearing oral testimony from important witnesses. The situation in the case at hand is quite different, as the IPCC, an independent investigatory body, had conducted a thorough investigation which included interviewing all relevant witnesses and the CPS had access to its findings in taking its prosecutorial decisions (see paragraph 80 above). Moreover, an examination and cross-examination of witnesses was conducted before the coroner at the inquest and he concluded that there was no evidence capable of being left to a jury that could establish unlawful killing in relation to any individual police officer (see paragraphs 103-27 above). Following the inquest, the CPS reviewed its original decision but concluded that there was still insufficient evidence to prosecute any individual (see paragraph 133 above). In such a case, there is nothing in the Court ’ s case-law to suggest that an independent prosecutor must also hear oral testimony before deciding whether or not to prosecute. 264. Consequently, the Court does not consider that the applicant ’ s complaints concerning the role and organisation of the CPS disclose any “institutional deficiencies” which prevented the authorities from adequately securing the accountability of those responsible for the death of Mr de Menezes. ( β ) The threshold evidential test 265. As the Government have explained, in deciding whether proceedings for an offence should be instituted, prosecutors in England and Wales have to apply a two-stage test: firstly, they must ask whether there is enough evidence to provide a “realistic prospect of conviction” against each defendant on each charge (the threshold evidential test); and, secondly, they must decide if a prosecution is needed in the public interest (see paragraph 163 above). In deciding whether there is a realistic prospect of conviction, they should not apply an arithmetical “51% rule”; rather, they should ask whether a conviction is “more likely than not” (see paragraph 164 above). 266. It is not in dispute that States should be permitted to have a threshold evidential test to prevent the financial and emotional costs of a trial being incurred where there are weak prospects of success. In Gürtekin and Others v. Cyprus ((dec.), nos. 60441/13 and 2 others, 11 March 2014) the Court implicitly recognised this: “A prosecution, particularly on such a serious charge as involvement in mass unlawful killings, should never be embarked upon lightly as the impact on a defendant who comes under the weight of the criminal justice system is considerable, being held up to public obloquy, with all the attendant repercussions on reputation, private, family and professional life. Given the presumption of innocence enshrined in Article 6 § 2 of the Convention, it can never be assumed that a particular person is so tainted with suspicion that the standard of evidence to be applied is an irrelevance. Rumour and gossip are a dangerous basis on which to base any steps that can potentially devastate a person ’ s life.” (§ 27) 267. Moreover, for the following reasons the Court considers that Contracting States should be accorded a certain margin of appreciation in setting that threshold. 268. Firstly, in setting the threshold evidential test the domestic authorities are required to balance a number of competing interests, including those of the victims, the potential defendants and the public at large and those authorities are evidently better placed than the Court to make such an assessment. In this regard, it is clear that the threshold applied by prosecutors in England and Wales is not an arbitrary one. On the contrary, it has been the subject of frequent reviews, public consultations and political scrutiny. In particular, detailed reviews of the Code were carried out in 2003, 2010 and 2012. It is also a threshold that applies across the board, that is, in respect of all offences and by whomsoever they were potentially committed. 269. Secondly, there is no uniform approach among Contracting States with regard to the threshold evidential test employed in their legal systems. A written threshold evidential test exists in at least twenty-four Contracting States (see paragraph 176 above). In principle, in twenty of those States the threshold test focuses on the sufficiency of evidence against the suspect; however, in practice it is impossible to state with any certainty that the prosecutorial decision-makers in those States do not also take into consideration the prospect of securing a conviction. In the four countries where the test expressly focuses on the prospect of conviction, the tests differ. In Austria, the test is “the likelihood of conviction”; in Iceland, the question is whether the evidence is “sufficient or probable for conviction”; in the former Yugoslav Republic of Macedonia, it is whether there exists “enough evidence from which the prosecutor can expect a conviction”; and in Portugal, “a reasonable possibility of imposing a penalty at trial” (see paragraph 178 above). 270. In any event, the threshold evidential test has to be viewed in the context of the criminal justice system taken as a whole. While the threshold adopted in England and Wales may be higher than that adopted in certain other countries, this reflects the jury system that operates there. Once a prosecution has been brought, the judge must leave the case to the jury as long as there is “some evidence” on which a jury properly directed could convict, even if that evidence is “of a tenuous nature” (this being the so ‑ called Galbraith test – see paragraph 166 above). As weak or unmeritorious cases cannot be filtered out by the trial judge, the threshold evidential test for bringing a prosecution may have to be a more stringent one. In this regard, it is significant that other common-law countries appear to have adopted a similar threshold to the one applied by prosecutors in England and Wales (see paragraphs 182 - 85 above). 271. In the circumstances, it cannot be said that the threshold evidential test in England and Wales was so high as to fall outside the State ’ s margin of appreciation. In Brecknell, a case concerning Northern Ireland, the Court indicated that Article 2 did not require States to prosecute cases where it was not apparent that prosecution would have any prospect of success (see paragraph 260 above). This is very similar to the test of “realistic prospect of conviction” applied in England and Wales and the fact that it has subsequently been interpreted by the domestic courts and authorities to mean that a conviction should be “more likely than not” does not, in the Court ’ s opinion, suffice to bring it outside the State ’ s margin of appreciation. In any case, it is impossible to state with any certainty that the test in England and Wales is higher than those employed in the four member States which also have a threshold focusing on the prospect of conviction (see paragraph 178 above). 272. The applicant has suggested that the threshold should be lower in cases involving the use of lethal force by State agents. However, there is nothing in the Court ’ s case-law to support this proposition. Although Gürtekin did not concern unlawful killing by State agents, in that case the Court made it clear that the fact that a crime engaging Article 2 of the Convention was particularly “serious” (in that case, mass killings) was not a sufficient reason to prosecute individuals regardless of the strength of the evidence. On the contrary, it found that since the consequences of a prosecution on such serious charges would be particularly severe for any defendant, it should not be lightly embarked upon (see paragraph 266 above). 273. The same considerations apply in cases concerning the use of lethal force by State agents. It is true that public confidence in both the law-enforcement agencies and the prosecution service could be undermined if State agents were not seen to be held accountable for the unjustifiable use of lethal force. However, such confidence would also be undermined if States were required to incur the financial and emotional costs of trial in the absence of any realistic prospect of conviction. The authorities of the respondent State are therefore entitled to take the view that public confidence in the prosecutorial system is best maintained by prosecuting where the evidence justifies it and not prosecuting where it does not (see paragraph 217 above). 274. In any case, it is clear that the domestic authorities have given thorough consideration to lowering the threshold in cases engaging the responsibility of the State, but decided that it would be both unfair and inconsistent to place an increased burden on potential defendants in these cases. Nevertheless, they did ensure that a number of safeguards were built into the system in cases of police shootings and deaths in custody: the DPP personally reviews all charging decisions; in all cases other than the most straightforward a decision not to prosecute has to be reviewed by independent counsel; the prosecutor has to write to the family of the victim to explain his or her decision; and the family has to be offered a meeting with the prosecutor to explain the decision (see paragraph 220 above). While it is true that there are not frequent prosecutions for police killings in the United Kingdom (as submitted by the third-party intervener at paragraph 228 above), this can be explained by the extremely restrictive policy on the use of firearms by State agents (see paragraph 221 above). As the Government have pointed out, between 2003/04 and 2012/13, the annual number of police operations resulting in the discharge of weapons has always been in single figures, even though the annual number of operations in which the use of weapons has been authorised has ranged from ten thousand to twenty thousand (see paragraph 221 above). 275. Furthermore, in the present case it is by no means certain or even likely that individual police officers could have been prosecuted had the Galbraith test been the threshold evidential test for bringing a prosecution against them (that is, if there only had to be some evidence, even if it was of a tenuous character). Indeed, on the facts of the present case the contrary is so, given that the self-same test was used by the coroner, an independent judicial officer, in deciding whether to leave a verdict of unlawful killing to the jury and, after hearing seventy-one witnesses, he concluded that the test was not satisfied in relation to any of the individual police officers concerned (see paragraphs 103 - 27 above). That being said, even if individual prosecutions had been possible had the threshold evidential test been the Galbraith test, it would not follow that the threshold in England and Wales was so high as to be in breach of Article 2. 276. In light of the above, the Court does not consider that the threshold evidential test applied in England and Wales constituted an “institutional deficiency” or failing in the prosecutorial system which precluded those responsible for the death of Mr de Menezes from being held accountable. ( γ ) Review of prosecutorial decisions 277. As already noted, a decision not to prosecute is susceptible to judicial review in England and Wales but the power of review is to be sparingly exercised; the courts can only interfere if a prosecutorial decision is wrong in law (see paragraph 165 above). 278. Nevertheless, the Court is not persuaded by the applicant ’ s argument that the scope of review is too narrow. In Gürtekin (cited above, § 28) the Court noted that the procedural obligation in Article 2 did not necessarily require that there should be judicial review of investigative decisions, although such reviews were doubtless a reassuring safeguard of accountability and transparency. The Court further noted that it was not its role to micro-manage the functioning of, and procedures applied in, criminal investigative and justice systems in Contracting States which may well vary in their approach and policies. Likewise, in Mustafa Tunç and Fecire Tunç (cited above, § 233), the Court held that while the intervention of a court or a judge enjoying sufficient statutory safeguards of independence was a supplementary element enabling the independence of the investigation as a whole to be guaranteed, it was not in itself an absolute requirement. 279. According to the information available to the Court, the decision not to prosecute is susceptible to some form of judicial review or appeal to a court of law in at least twenty-five Contracting States and in these countries the standard of review varies considerably. In seven of these countries the decision must first be contested before a hierarchical superior in the prosecution service. In twelve countries, the decision of the prosecutor may only be contested before such a hierarchical superior (see paragraph 181 above). Consequently, it cannot be said that there is any uniform approach among member States with regard either to the availability of review or, if available, the scope of that review. 280. In England and Wales there was, at the relevant time, a right to have prosecutorial decisions judicially reviewed by an independent court. In view of the fact that the prosecutorial decision in the case at hand was made by a senior independent prosecutor, having first taken independent legal advice, and the reasons for that decision were fully explained to the family of the deceased, the Court finds nothing in its case-law which would support the applicant ’ s assertion that Article 2 required the Administrative Court to have greater powers of review. In any event, the Court notes that in the present case the Administrative Court had regard to this Court ’ s case-law, in particular the requirement of “careful scrutiny” enunciated in Öneryıldız. Moreover, it did not simply find that the prosecutor ’ s decision had not been irrational; although not required to go so far, it expressly indicated that it agreed with the prosecutor ’ s conclusions (see paragraph 98 above). 281. In light of the above, the Court does not consider that the scope of judicial review of prosecutorial decisions in England and Wales could be described as an “institutional deficiency” which impacted upon the ability of the domestic authorities to ensure that those responsible for the death of Mr de Menezes were held to account. (δ) Partial conclusion 282. Accordingly, having regard to the criminal proceedings as a whole, the applicant has not demonstrated that there existed any “institutional deficiencies” in the criminal justice or prosecutorial system which gave rise – or were capable of giving rise – to a procedural breach of Article 2 of the Convention on the facts of the instant case. (iii) Overall conclusion on the applicant ’ s Article 2 complaint 283. The facts of the present case are undoubtedly tragic and the frustration of Mr de Menezes ’ family at the absence of any individual prosecutions is understandable. However, it cannot be said that “any question of the authorities ’ responsibility for the death ... was left in abeyance” (compare, for example, Öneryıldız, cited above, § 116, in which there had been no recognition of the responsibility of the public officials for the death of the applicant ’ s relatives ). As soon as it was confirmed that Mr de Menezes had not been involved in the attempted attack on 21 July 2005, the MPS publicly accepted that he had been killed in error by SFOs. A representative of the MPS flew to Brazil to apologise to his family face-to-face and to make an ex gratia payment to cover their financial needs. They were further advised to seek independent legal advice and assured that any legal costs would be met by the MPS. The individual responsibility of the police officers involved and the institutional responsibility of the OCPM were subsequently considered in depth by the IPCC, the CPS, the criminal court and the coroner and jury during the inquest. Later, when his family brought a civil claim for damages, the MPS agreed to a settlement with an undisclosed sum being paid in compensation. 284. As the Government have pointed out, sometimes lives are lost as a result of failures in the overall system rather than individual error entailing criminal or disciplinary liability. Indeed, in McCann and Others the Court implicitly recognised that in complex police operations failings could be institutional, individual or both. In the present case, both the institutional responsibility of the police and the individual responsibility of all the relevant officers were considered in depth by the IPCC, the CPS, the criminal court, the coroner and the inquest jury. The decision to prosecute the OCPM as an employer of police officers did not have the consequence, either in law or in practice, of excluding the prosecution of individual police officers as well. Neither was the decision not to prosecute any individual officer due to any failings in the investigation or the State ’ s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to meet the threshold evidential test in respect of any criminal offence. Nevertheless, institutional and operational failings were identified and detailed recommendations were made to ensure that the mistakes leading to the death of Mr de Menezes were not repeated. In its Review Note the CPS clearly stated that Operation THESEUS 2 had been badly handled from the moment it passed from Commander McDowall to Commander Dick; that a lack of planning had led to the death of Jean Charles de Menezes; and that the institutional and operational failures were “serious, avoidable, and led to the death of an innocent man”. 285. These institutional failures resulted in the conviction of the OCPM for offences under the 1974 Act, which the applicant did not consider to be a sufficiently weighty offence to satisfy the procedural requirements of Article 2 of the Convention. However, this is not a case of “manifest disproportion” between the offence committed and the sanction imposed (see, for example, Kasap and Others, cited above, § 59; A. v. Croatia, cited above, § 66; and Ali and Ayşe Duran, cited above, § 66 ). The cases in which the Court found such “manifest disproportion” are cases in which individuals were found guilty of serious offences but given excessively light punishments. In the present case an independent prosecutor weighed all the evidence in the balance and decided that there was only sufficient evidence to prosecute the OCPM for offences under the 1974 Act. Moreover, having found the OCPM to be guilty as charged, there is no evidence before the Court to indicate that the “punishment” (a fine of 175,000 pounds sterling (GBP) and costs of GBP 385,000) was excessively light for offences of that nature. 286. Consequently, having regard to the proceedings as a whole, it cannot be said that the domestic authorities have failed to discharge the procedural obligation under Article 2 of the Convention to conduct an effective investigation into the shooting of Mr de Menezes which was capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible. 287. In light of this conclusion, it is not necessary for the Court to consider the role of private prosecutions or disciplinary proceedings in fulfilling the State ’ s procedural obligations under Article 2 of the Convention. 288. Accordingly, the Court finds that in the present case no violation of the procedural aspect of Article 2 of the Convention has been established. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 289. The applicant complained that the decision not to prosecute any individual for the death of her cousin also constituted a procedural violation of Article 3 of the Convention. 290. In the absence of any evidence to suggest that Mr de Menezes was subjected to ill-treatment within the meaning of Article 3, the Court considers this complaint to be manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION READ TOGETHER WITH ARTICLES 2 AND/OR 3 291. The applicant further complained that as the investigation into Mr de Menezes ’ death was incapable of leading to the prosecution of any individual, she had been denied an effective remedy in respect of her Article 2 and Article 3 complaints. 292. As the essence of the applicant ’ s complaint is that no individual was prosecuted for her cousin ’ s death, the Court considers that it more properly falls to be considered under the procedural aspect of Article 2 of the Convention. 293. Accordingly, the Court also considers this complaint to be manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. | The Court held that there had been no violation of Article 2 (right to life – investigation) of the Convention. Having regard to the proceedings as a whole, it found that the UK authorities had not failed in their obligations under Article 2 of the Convention to conduct an effective investigation into the shooting of the applicant’s cousin which was capable of identifying and – if appropriate – punishing those responsible. In particular, the Court considered that all aspects of the authorities’ responsibility for the fatal shooting had been thoroughly investigated. Both the individual responsibility of the police officers involved and the institutional responsibility of the police authority had been considered in depth by the Independent Police Complaints Commission, the Crown Prosecution Service, the criminal court and the Coroner and jury during the Inquest. The decision not to prosecute any individual officer was not due to any failings in the investigation or the State’s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to prosecute. |
312 | Prevention of terrorism | THE LAW PRELIMINARY QUESTION CONCERNING THE DEROGATION BY TURKEY 106. In the Government ’ s submission, all the applicants ’ complaints should be examined with due regard to the derogation of which the Secretary General of the Council of Europe had been notified on 21 July 2016 under Article 15 of the Convention. They submitted that in availing itself of its right to make a derogation from the Convention, Turkey had not breached the provisions of the Convention. In that context they argued that there had been a public emergency threatening the life of the nation on account of the risks caused by the attempted military coup and that the measures taken by the national authorities in response to the emergency had been strictly required by the exigencies of the situation. 107. The applicants contested the Government ’ s argument. In their submission, the application of Article 15 of the Convention could not result in the removal of all the safeguards under Article 5. They submitted that there had been no reasonable suspicion that they had committed an offence, that they had gone to the police station to give statements of their own accord, and that the applicant Akın Atalay had even returned from abroad for that purpose. 108. The Court observes that the applicants ’ pre-trial detention took place during the state of emergency. It also notes that the criminal proceedings instituted against them during that period have extended beyond it. 109. At this stage the Court observes that in its judgment in the case of Mehmet Hasan Altan v. Turkey ( no. 13237/17, § 93, 20 March 2018) it held that the attempted military coup had disclosed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention. As to whether the measures taken in the present case were strictly required by the exigencies of the situation and consistent with the other obligations under international law, the Court considers it necessary to examine the applicants ’ complaints on the merits, and will do so below. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONSObjection under Article 35 § 2 (b) of the Convention Objection under Article 35 § 2 (b) of the Convention Objection under Article 35 § 2 (b) of the Convention 110. The Government argued that the applicants had submitted their complaints to another procedure of international investigation or settlement within the meaning of Article 35 § 2 (b) of the Convention, namely the United Nations Working Group on Arbitrary Detention (“the WGAD”). In their submission, although a non-governmental organisation had been named as the applicant before the WGAD, it could not have provided certain details without receiving input from the applicants. Furthermore, the applicants had not informed the Court that they had previously submitted their case to another international body; this amounted to an abuse of the right of application to the Court. The relevant parts of Article 35 of the Convention provide: “... 2. The Court shall not deal with any application submitted under Article 34 that: ... (b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information. 3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is ... an abuse of the right of individual application ...” 111. The applicants contested the Government ’ s argument. They submitted that the complaint to the WGAD had been submitted by a third party, Mr Srinivas, on behalf of the Right Livelihood Award Foundation, a foundation based in Sweden, and that the applicants themselves had not submitted any individual applications to an international body. The only link between the newspaper Cumhuriyet and the above-mentioned foundation lay in the fact that the newspaper had received the Right Livelihood Award a year previously. Both the applicants and the subject matter of the present applications were different from those in the procedure before the WGAD. 112. The Court observes that it has previously examined the procedure before the WGAD and concluded that this Working Group was indeed a “procedure of international investigation or settlement” within the meaning of Article 35 § 2 (b) of the Convention (see Peraldi v. France ( dec. ), no. 2096/05, 7 April 2009). 113. In the instant case the Court observes that it has not been established that the applicants or their close relatives submitted any application to the United Nations bodies (see, conversely, Peraldi, cited above), or that they actively participated in any proceedings before them. In this connection it reiterates that, under its case-law, if the complainants before the two institutions are not identical (see Folgerø and Others v. Norway ( dec. ), no. 15472/02, 14 February 2006, and Eğitim ve Bilim Emekçileri Sendikası v. Turkey, no. 20641/05, §§ 37, ECHR 2012 (extracts)), the application to the Court cannot be considered as being “substantially the same as a matter that has ... been submitted ...”. 114. The Court also considers that given the nature of the case, which related to the detention of journalists and managers of a newspaper on account of the newspaper ’ s editorial stance, it is consistent with the normal course of life for non-governmental organisations working in the sphere of press freedom to feel concerned by the events and themselves take the initiative to put an end to interference which they consider to be unjustified. 115. As to the Government ’ s argument that there had been an abuse of the right of individual application because the applicants had not informed the Court of the procedure before the WGAD, the Court refers in the first place to its finding that the procedure in question was initiated and conducted without the participation of the applicants. It also notes that the judicial authorities involved in the present case took no account of the WGAD ’ s findings, nor did they include them in the proceedings before them. Those findings, although they concluded that the applicants ’ detention had been unlawful, remained a “dead letter” for the applicants at domestic level. In the Court ’ s view, therefore, it cannot be said that the applicants abused the right of application by not first informing the Court of the procedure before the WGAD. Objections concerning the individual applications to the Constitutional Court 116. The Government, referring mainly to the Court ’ s findings in its decisions in Uzun v. Turkey (( dec. ), no. 10755/13, 30 April 2013) and Mercan v. Turkey (( dec. ), no. 56511/16, 8 November 2016), alleged that the applicants had not exercised the remedy of an individual application before the Constitutional Court. 117. The applicants contested the Government ’ s argument. 118. The Court reiterates that an applicant ’ s compliance with the requirement to exhaust domestic remedies is normally assessed with reference to the date on which the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). Nevertheless, the Court accepts that the last stage of a particular remedy may be reached after the application has been lodged but before its admissibility has been determined (see Karoussiotis v. Portugal, no. 23205/08, § 57, ECHR 2011 (extracts); Stanka Mirković and Others v. Montenegro, nos. 33781/15 and 3 others, § 48, 7 March 2017; and Azzolina and Others v. Italy, nos. 28923/09 and 67599/10, § 105, 26 October 2017). 119. The Court observes that on 26 December 2016 the applicants lodged individual applications with the Constitutional Court, which gave its judgments on the merits on 11 January 2018 and on 2 and 3 May 2019. 120. Accordingly, the Court also dismisses this objection raised by the Government with regard to the applicants other than Turhan Günay and Ahmet Kadri Gürsel. 121. In the case of those two applicants ( Turhan Günay and Ahmet Kadri Gürsel ), the Court considers that as the Constitutional Court, in its judgments of 11 January 2018 and 2 May 2019 respectively, found a violation of Article 19 of the Constitution (right to liberty and security of person) and also, in the case of Ahmet Kadri Gürsel alone, a violation of Articles 26 and 28 of the Constitution (concerning, respectively, freedom of expression and freedom of the press), these two applicants – who, moreover, had not claimed pecuniary compensation – can no longer claim victim status in the present case in respect of the facts examined by the Constitutional Court. The application must therefore be declared inadmissible as regards these two applicants ( Turhan Günay and Ahmet Kadri Gürsel ), except in relation to their complaints concerning the time taken to examine their applications to the Constitutional Court challenging the lawfulness of their pre-trial detention (Article 5 § 4 of the Convention). Objection of failure to exhaust domestic remedies on account of the failure to bring a compensation claim 122. Regarding the applicants ’ complaints concerning their pre-trial detention, the Government stated that a compensation claim had been available to the applicants under Article 141 § 1 (a) and (d) of the CCP. The Government contended that the applicants could and should have brought a compensation claim on the basis of those provisions. 123. The applicants contested the Government ’ s argument. They asserted, in particular, that a compensation claim had not offered any reasonable prospect of success in terms of remedying the unlawfulness of their detention or securing their release. 124. As regards the period during which the applicants were in detention, the Court reiterates that for a remedy in respect of the lawfulness of an ongoing deprivation of liberty to be effective, it must offer a prospect of release (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 40, 6 November 2008, and Mustafa Avci v. Turkey, no. 39322/12, § 60, 23 May 2017). It notes that the remedy provided for in Article 141 of the CCP is not capable of terminating an applicant ’ s pre-trial detention. 125. As to the period during which the applicants were released pending trial, the Court notes that they had already submitted their complaints under Article 5 of the Convention in the context of their applications to the Constitutional Court. That court examined their complaints on the merits and dismissed them in its judgments of 2 and 3 May 2019. 126. The Court considers that, regard being had to the rank and authority of the Constitutional Court in the Turkish judicial system, and in view of the conclusion reached by that court concerning these complaints, a claim for compensation under Article 141 of the CCP had, and continues to have, no prospect of success (see, to similar effect, Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 27, Series A no. 332, and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 58, ECHR 2010). Accordingly, the Court considers that the applicants were not required to exercise this compensatory remedy, even after their release. 127. The objection raised by the Government in this regard must therefore be dismissed. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 128. The applicants (except for Turhan Günay and Ahmet Kadri Gürsel ) complained that their initial and continued pre-trial detention had been arbitrary. They alleged, in particular, that the judicial decisions ordering and extending their pre-trial detention had not been based on any concrete evidence grounding a reasonable suspicion that they had committed a criminal offence. In their submission, the facts on which the suspicions against them had been based related solely to acts coming within the scope of their activity as journalists and, hence, of their freedom of expression. 129. In this regard they alleged a violation of Article 5 §§ 1 and 3 of the Convention, the relevant parts of which provide: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” Admissibility 130. The Court notes that these complaints, with the exception of those of the applicants Turhan Günay and Ahmet Kadri Gürsel that have been declared inadmissible, are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicants 131. The applicants maintained that there were no facts or information that could satisfy an objective observer that they had committed the offences of which they were accused. The facts on which the suspicions against them had been based related in principle to acts coming within the journalistic activity of the newspaper Cumhuriyet for which they worked. The remaining allegations made by the prosecutor ’ s office had no basis in reality. This was true, for instance, of the allegation that companies with close ties to the organisation FETÖ had provided funding to Cumhuriyet by purchasing advertising space, as these transactions had not amounted to more than one per cent of those companies ’ advertising expenditure. 132. The applicants also pointed to the aspects of their initial and continued detention which they considered to be in breach of the provisions of domestic law and hence unlawful. Firstly, although they had been arrested on suspicion of carrying out activities on behalf of terrorist organisations without being members of those organisations, the reasons given in the orders for their pre-trial detention had referred to propaganda in favour of terrorist organisations (the offence provided for in Article 220 § 8 of the CC), and in no way justified the main suspicions against them. Secondly, the suspicions against them had not been individualised, in breach of the CCP. Although a separate detention order had been drawn up in the name of each individual applicant, they had all been accused in blanket fashion of responsibility for the newspaper ’ s editorial stance on account of their managerial positions. Thirdly, according to the Press Act, the proprietors and editors-in-chief of newspapers were not liable for articles constituting a criminal offence unless the authors of the articles had not been identified. Hence, their criminal responsibility should not be engaged in relation to the articles referred to in the detention orders and the indictment. The applicants added that the applicant Mehmet Murat Sabuncu had been appointed as the newspaper ’ s publication director on 1 September 2016 and that the applicant Kadri Gürsel had been the editorial adviser as of 20 September 2016, and that the articles complained of had been written before those dates. The applicants also contested the reasons given by the judicial authorities for their continued pre-trial detention. (b) The Government 133. The Government, referring to the principles established in the Court ’ s case-law in this sphere (they cited Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no.182, and İpek and Others v. Turkey, nos. 17019/02 and 30070/02, 3 February 2009), stated at the outset that the applicants had been arrested and placed in pre-trial detention in the course of a criminal investigation instituted in the context of action to combat terrorist organisations. 134. According to the information in the investigation file, the basis for the investigation concerning the applicants had been the suspicion that the newspaper for which they worked had been acting in accordance with the objectives of terrorist organisations such as FETÖ/PDY, the PKK and the DHKP/C, with a view to provoking civil war and rendering the country ungovernable before and after 15 July 2016. 135. The Government stressed that the organisation FETÖ/PDY was an atypical terrorist organisation of an entirely new kind. Firstly, the organisation in question had placed its members in all the State organisations and institutions, that is to say, in the judicial apparatus, the law ‑ enforcement agencies and the armed forces, in an apparently lawful manner. Furthermore, it had created a parallel structure by setting up its own organisation in all spheres, including the mass media, the trade unions, the financial sector and education. Secondly, FETÖ/PDY, by insidiously placing its members in sections of the press that were not part of its own organisation, had attempted to steer the material published by them in order to convey subliminal messages to the public and thus manipulate public opinion for its own aims. 136. In the Government ’ s submission, the ultimate aim of the terrorist organisation the PKK had been established by Abdullah Öcalan and his friends in 1978, when they had founded the organisation. That aim was to establish an independent State of Kurdistan based on Marxist-Leninist principles and covering east and south-east Turkey and parts of Syria, Iran and Iraq. The KCK was a political model for reconstructing Kurdish society through administrative and judicial structures, in accordance with the PKK ’ s ultimate goal. According to the Government, the PKK and its sub-groups had carried out terrorist activities that had infringed the right to life (tens of thousands had been killed and wounded, including civilians and members of the security forces, in the period preceding the attempted coup), the right to liberty and security, the right to respect for one ’ s home and the right to property, in several regions of Turkey. In particular, these organisations had stepped up the number of terrorist attacks in a bid to declare the supposed autonomy of certain provinces in south-east Turkey and to bring pressure to bear on the population of that region by preventing free movement (digging trenches, installing barricades and planting bombs at the exit and entry points of the towns and cities), and by using military weapons. 137. The Government further submitted that from the evidence that had been gathered during the criminal investigation, it was objectively possible to conclude that there had been a reasonable suspicion that the applicants had committed the offences of which they were accused. On the strength of the evidence obtained during the investigation, criminal proceedings had been instituted against the applicants and were currently pending before the domestic courts. The third-party interveners (a) The Commissioner for Human Rights 138. The Commissioner for Human Rights pointed out that excessive recourse to detention was a long-standing problem in Turkey. In that connection he noted that 210 journalists had been placed in pre-trial detention during the state of emergency, not including those who had been arrested and released after being questioned. One of the underlying reasons for the high numbers of journalists being detained was the practice of judges, who often tended to disregard the exceptional nature of detention as a measure of last resort that should only be applied when all other options were deemed insufficient. In the majority of cases where journalists had been placed in pre-trial detention, they had been charged with terrorism ‑ related offences without any evidence corroborating their involvement in terrorist activities. The Commissioner for Human Rights was struck by the weakness of the accusations and the political nature of the decisions ordering and extending pre-trial detention in such cases. (b) The Special Rapporteur 139. The Special Rapporteur noted that since the declaration of a state of emergency, a large number of journalists had been placed in pre-trial detention on the basis of vaguely worded charges without sufficient evidence. 140. In the Special Rapporteur ’ s submission, the combination of facts surrounding the prosecution of journalists suggested that, under the pretext of combating terrorism, the national authorities were interpreting the criminal legislation and investigation files in a broad and unforeseeable manner, thereby arbitrarily suppressing freedom of expression through prosecutions and detention. For instance, the journalists in question had been charged, among other offences, with conducting telephone conversations with persons who had allegedly used the ByLock application, with no account being taken of the fact that the journalists themselves had never used the application. (c) The intervening non-governmental organisations 141. The intervening non-governmental organisations stated that since the attempted military coup more than 150 journalists had been placed in pre-trial detention. Emphasising the crucial role played by the media in a democratic society, they criticised the use of measures depriving journalists of their liberty. The Court ’ s assessment (a) Relevant principles 142. The Court reiterates firstly that Article 5 of the Convention guarantees a right of primary importance in a “democratic society” within the meaning of the Convention, namely the fundamental right to liberty and security (see Assanidze v. Georgia [GC], no. 71503/01, § 169, ECHR 2004 ‑ II). 143. All persons are entitled to the protection of that right, that is to say, not to be deprived, or to continue to be deprived, of their liberty (see Weeks v. the United Kingdom, 2 March 1987, § 40, Series A no. 114), save in accordance with the conditions specified in paragraph 1 of Article 5 of the Convention. The list of exceptions set out in Article 5 § 1 is an exhaustive one (see Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000 ‑ IV), and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Assanidze, cited above, § 170; Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 99, ECHR 2011; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts)). 144. Article 5 § 1 (c) of the Convention does not presuppose that the investigating authorities should have obtained sufficient evidence to bring charges at the point of arrest or while the applicants were in custody. The purpose of questioning during detention under Article 5 § 1 (c) is to further the criminal investigation by confirming or dispelling the concrete suspicion grounding the arrest (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no.145 ‑ B). Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300 ‑ A; Metin v. Turkey ( dec. ), no. 77479/11, § 57, 3 March 2015; and Yüksel and Others v. Turkey, nos. 55835/09 and 2 others, § 52, 31 May 2016). 145. However, the “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary detention laid down in Article 5 § 1 (c) of the Convention. For that reason, the fact that a suspicion is held in good faith is insufficient in itself. There are in fact two aspects to the “reasonable suspicion” requirement, which are separate but overlapping: a factual aspect and an aspect concerning the classification as criminal conduct. 146. Firstly, as regards the factual aspect, the notion of “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will depend upon all the circumstances (see, among other authorities, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182, and Merabishvili v. Georgia [GC], no. 72508/13, § 184, 28 November 2017), but the Court must be able to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured. It must therefore consider, in assessing the factual aspect, whether the arrest and detention were based on sufficient objective elements to justify a “reasonable suspicion” that the facts at issue had actually occurred and were attributable to the persons under suspicion (see Fox, Campbell and Hartley, cited above, §§ 32-34, and Murray, cited above, §§ 50-63). Consequently the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence. 147. Secondly, the other aspect of the existence of a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention, namely the classification as criminal conduct, requires that the facts relied on can be reasonably considered as falling under one of the sections describing criminal behaviour in the Criminal Code. Thus, there could clearly not be a “reasonable suspicion” if the acts or facts held against a detained person did not constitute a crime at the time when they occurred (see Kandjov v. Bulgaria, no. 68294/01, § 57, 6 November 2008). 148. Further, it must not appear that the alleged offences themselves were related to the exercise of the applicant ’ s rights under the Convention (see, mutatis mutandis, Merabishvili, cited above, § 187). In that regard the Court emphasises that, since the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 171, 13 February 2020), a suspicion cannot be regarded as reasonable if it is based on an approach consisting in “classifying as criminal conduct” the exercise of the rights and freedoms recognised by the Convention. Otherwise, the use of the notion of “reasonable suspicion” to deprive the persons concerned of their physical liberty would risk rendering it impossible for them to exercise their rights and freedoms under the Convention. 149. In that connection the Court reiterates that any deprivation of liberty should be in keeping with the purpose of Article 5 of the Convention, namely to protect the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see, among other authorities, A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 162-64, ECHR 2009, and Creangă v. Romania [GC], no. 29226/03, § 84, 23 February 2012). 150. The Court also observes that it is at the time of arrest that the suspicions against a person must be “reasonable” and that, in cases of prolonged detention, those suspicions must remain “reasonable” (see, among many other authorities, Stögmüller v. Austria, 10 November 1969, p. 40, § 4, Series A no. 9; McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006-X; and Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 90, 22 May 2014). Furthermore, the requirement for the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion that the arrested person has committed an offence – applies already at the time of the first decision ordering pre ‑ trial detention, that is to say “promptly” after the arrest (see Buzadji, cited above, § 102). (b) Application of these principles in the present case 151. The Court observes that the applicants were suspected of assisting organisations considered as terrorist organisations or of disseminating propaganda in their favour, mainly on account of articles published in the newspaper whose editorial stance they had allegedly influenced in their capacity as managers and, in some cases, by sharing material on social media. These are serious criminal offences which are punishable by imprisonment under Turkish law. 152. The Court ’ s task under Article 5 of the Convention is to ascertain whether there were sufficient objective elements to satisfy an objective observer that the applicants could have committed the offences of which they were accused. In view of the seriousness of these offences and the severity of the potential sentence, the facts need to be examined with great care. In that connection it is essential that the facts grounding the suspicion should be justified by verifiable and objective evidence and that they can be reasonably considered as falling under one of the sections describing criminal behaviour in the Criminal Code. 153. The Court notes in that regard that the dispute between the parties in the present case does not concern the wording of the text or headings of the articles and social media posts referred to in the decisions of the judicial authorities responsible for pre-trial detention. Rather it concerns the attributability of those materials to the applicants and the plausibility of other alleged acts (the factual aspect), as well as the classification of the facts as criminal conduct (aspect concerning the classification under criminal law). (i) Factual aspect of the existence of “reasonable suspicion”: attributability and plausibility (1) Attributability to the applicants of the impugned articles allegedly indicating a change in the editorial stance of Cumhuriyet 154. As to whether the strikingly large number of articles referred to and listed in the detention orders can be attributed to the applicants, the Court observes that the latter were not the authors of the articles in question. It notes that the judicial authorities that ordered the applicants ’ pre-trial detention were unable to cite any concrete or specific fact capable of suggesting that the applicants had imposed the content of those articles on the authors, either with regard to the facts dealt with or the opinions expressed therein, with the undeclared aim of assisting illegal organisations. The authorities ’ accusations against the applicants were based solely on assumptions stemming from the positions which they occupied within the bodies that managed and funded the newspaper Cumhuriyet. 155. The Court observes in that connection that the magistrates, in ordering the applicants ’ pre-trial detention, and the Constitutional Court, in dealing with their individual applications, made extensive findings on this issue which can be divided into three groups. Firstly, they found that the Cumhuriyet Foundation ranked above the company Yenigün and the daily newspaper Cumhuriyet in the institutional hierarchy, and that its board of management was in a position to direct the newspaper ’ s editorial stance. In this regard they took into consideration the fact that the foundation ’ s board of management had the power to appoint or remove the publication director and could decide which journalists to recruit and which to dismiss. Secondly, the judicial authorities concerned and the Constitutional Court noted that on the day before a major “scoop”, meetings were held within the newspaper Cumhuriyet which were attended by certain members of the board of management. Thirdly, those authorities considered that following the appointment of the applicants (with the exception of Mehmet Murat Sabuncu ) to the board of management of the Cumhuriyet Foundation, the newspaper Cumhuriyet had published several articles that could be regarded as propaganda and assistance in favour of terrorist organisations, in that they had been liable to create a favourable impression of those organisations among the public. The national judicial authorities found the applicant Mehmet Murat Sabuncu to be responsible for the impugned articles on the sole ground that he had been the newspaper ’ s publication director, rather than relying mainly on their assessment concerning the relationship between the foundation, the media company and the newspaper. In the magistrate ’ s view, Mr Sabuncu, in his capacity as the publication director, was responsible for all the articles referred to in the pre-trial detention orders issued in respect of all the applicants (see paragraph 23 above). Meanwhile, in the Constitutional Court ’ s view, he was responsible for the articles published during the periods when he had been involved in overseeing the material that was published (see paragraphs 43-45 above). The tweets posted by the applicants Mehmet Murat Sabuncu and Akın Atalay were taken into consideration as additional items of evidence in support of the main charge, which was based in particular on the publication of the impugned articles in the newspaper Cumhuriyet. 156. Even though the Court has serious doubts as to whether the articles complained of could be attributed to all the applicants, it notes that the assessment made by the national courts (including the Constitutional Court) was that the applicants were indeed responsible for those articles. In these circumstances the Court decides to ascertain whether the articles in question – even assuming them to be attributable to all the applicants – and other evidence adduced against them were capable of grounding a reasonable suspicion in relation to the applicants. (2) Attributability to the applicants of the activities relating to the illegal organisations in question 157. The Court also notes that the authorities concerned were unable to cite any specific facts or information capable of suggesting that the above ‑ mentioned illegal organisations had issued requests or instructions to Cumhuriyet ’ s managers or journalists for the newspaper to publish specific items or follow a particular editorial policy with the aim of helping to prepare and carry out a campaign of violence or legitimising such violence. 158. As to the witness evidence against the applicants cited by the prosecuting authorities and given by former Cumhuriyet journalists who had been removed from positions of responsibility, the Court notes that it merely contained very general impressions regarding the newspaper ’ s alleged links to the illegal organisations referred to, without remedying the shortcomings which invalidated the suspicions raised by the judicial authorities. (3) Plausibility of certain acts other than the criticisms of the government 159. The Court also notes that the acts of which the applicants were accused by the authorities responsible for their detention, leaving aside the articles published in Cumhuriyet and the material posted on social media, cannot be regarded as relevant in establishing the existence of a reasonable suspicion that the offence of assisting a terrorist organisation had been committed. Given the complete absence of any incriminating content, the telephone calls made by Mehmet Murat Sabuncu and Akın Atalay to public figures against whom criminal proceedings were later brought constitute acts consistent with the normal course of journalistic activity and cannot be regarded as grounding a reasonable suspicion that the applicants had committed the criminal offences of which they were accused. 160. As to the financial transactions linked to the advertisements placed in the newspaper Cumhuriyet by companies with close ties to the organisation FETÖ (cited as evidence against the applicant Akın Atalay ), the Court considers, in the light of the modest sums involved (around one per cent of the advertising expenditure of the companies concerned) that they do not demonstrate the existence of a privileged commercial relationship. 161. Likewise, in the Court ’ s view, it cannot reasonably be inferred from an article entitled “Peace in the world, but what about at home?” (mainly criticising the President ’ s political approach by alleging that his strategy of creating tensions between the different sectors of society was undermining peace within the country) that the author of the article had announced the date of the attempted coup because the instigators were controlled by a body known as the “Peace at Home Council”. 162. The Court further considers that it cannot reasonably be claimed that an article published in Cumhuriyet, a national daily newspaper, informing the public of the location where the President, who had been absent from the media for almost a week, had been on holiday, was in fact intended to indicate to the instigators of the planned military coup where they needed to focus their actions in order to neutralise the President. 163. As regards the journalists ’ contribution to seminars on topical political issues, including the “ Abant meetings”, the Court considers that the political leanings of the organisers cannot reasonably be taken into account in determining the nature of the “reasonable suspicion”, in the absence of any element in the content of the Cumhuriyet journalists ’ contributions capable of justifying restrictions on their freedom of expression. 164. The Court therefore considers that the logic applied in the present case by the authorities responsible for the applicants ’ pre-trial detention, equating these activities to assisting a terrorist organisation, cannot be regarded as an acceptable assessment of the facts. (ii) Aspect concerning the classification as criminal conduct of the facts grounding the “reasonable suspicion” 165. The Court must also ascertain whether the materials relied on as grounds for the suspicions against the applicants could reasonably amount to an offence provided for by the CC at the time when they were written. (1) Classification of the impugned materials according to their aim 166. The Court observes that the published material referred to by the judicial authorities in ordering and extending the applicants ’ pre-trial detention, as taken into consideration by the Constitutional Court in its judgments of 2 and 3 May 2019, can be divided into four groups. 167. The first group included the articles amounting to criticism of the political authorities ’ policies and the public conduct of their sympathisers, namely an article entitled “Danger on the streets” (see paragraphs 23, 46 and 48 above); an article entitled “No one at the rallies is talking about democracy” (see paragraphs 23, 46 and 48 above); an article about the MİT lorries (see paragraphs 23 and 48 above); an article concerning the explosives attack on the town of Reyhanlı (see paragraphs 23 and 48 above); an article under the heading “Peace in the world, but what about at home?” (see paragraphs 46 and 49 above); an article entitled “Incomplete democracy” (see paragraphs 43 and 46 above); an interview with Fethullah Gülen published on 23 May 2015 under the heading “The son-in-law called my humble home ( fakirhane ) a mansion ( malikhane )” (see paragraph 49 above); the statement made by a Cumhuriyet journalist in an interview saying that he “would not describe the Gülenist community as a terrorist organisation” (see paragraph 49 above); and news items reporting information posted on the Twitter accounts @ fuatavni and @ jeansbiri (see paragraph 49 above). 168. The second group included articles and messages or news items reporting statements made by persons allegedly representing illegal organisations, namely an interview entitled “If they don ’ t agree to autonomy, we ’ ll consider separation ”, reporting on the views of one of the PKK ’ s leaders, M. Karayilan (see paragraphs 23 and 48 above); an article describing the PKK ’ s militants as “guerrilla fighters” and relaying the remarks made by the PKK ’ s leaders on certain topical issues (see paragraphs 23 and 48 above); an article about Selahattin Demirtaş, stating that the PKK was mindful of environmental and gender equality issues (see paragraphs 23 and 48 above); tweets by the applicant Mehmet Murat Sabuncu containing excerpts from an interview with the Gülen family and from a BBC interview with Gülen himself (see paragraph 47 above); the use by the newspaper Cumhuriyet on two occasions of the same heading as the daily newspaper Zaman (see paragraph 49 above); and some articles by Cumhuriyet ’ s US correspondent reporting on some of the views of the organisation FETÖ/PDY on current affairs (see paragraph 49 above). 169. The third group included the assessments and criticisms made by Cumhuriyet journalists concerning the administrative and judicial authorities ’ actions to combat the illegal organisations, namely an article entitled “War at home, war in the world” (see paragraphs 23 and 48 above); an article entitled “The witch hunt has begun” (see paragraphs 23, 46 and 48 above); a series of news items and interviews concerning the alleged disappearance in police custody of Hurşit Külter, a local politician of Kurdish origin (see paragraph 46 above); some tweets posted by the applicant Mehmet Murat Sabuncu expressing support for the journalists who had been dismissed or prosecuted (see paragraph 47 above); and material posted on social media by the applicant Akın Atalay criticising the allegedly unlawful measures taken against certain mass media outlets (see paragraph 48 above). 170. The fourth group included sensitive information arousing public interest, namely an article entitled “ He went missing for a week ... we ’ ve discovered where Erdoğan was” (see paragraphs 23, 46 and 48 above) and articles featuring photographs of the incident in which a prosecutor was taken hostage and a telephone interview with the hostage-takers (see paragraphs 23 and 48 above). (2) Characteristics common to the four groups 171. The Court notes that the four groups of articles or messages referred to above and cited as grounds for the suspicion against the applicants have some characteristics in common. 172. Firstly, the articles and messages constituted contributions by the journalists of Cumhuriyet to various public debates on matters of general interest. They contained the journalists ’ assessment of current political developments, their analysis and criticism of the various actions taken by the government, and their points of view on the legality and compatibility with the rule of law of the administrative and judicial measures taken against the alleged members or sympathisers of the illegal organisations. The topics addressed in these messages and articles – including the role of the Fethullahist movement in the attempted coup of 15 July 2016, the reaction of those close to the government to the coup attempt, the necessity and proportionality of the measures taken by the government against the prohibited organisations, the appropriateness or otherwise of the government ’ s domestic and external security policy, including in relation to illegal separatist organisations, and the views expressed by the alleged members of the illegal organisations challenging the accusations made against them – had already been the subject of wide-ranging public debate in Turkey and beyond, involving political parties, the press, non ‑ governmental organisations, groups representing civil society and public international organisations. 173. Secondly, those articles and messages did not contain any incitement to commit terrorist offences, did not condone the use of violence and did not encourage insurrection against the legitimate authorities. While some of the published material may have reported points of view voiced by members of prohibited organisations, it remained within the bounds of freedom of expression, which requires that the public has the right to be informed of the different ways of viewing a situation of conflict or tension, including the point of view of illegal organisations (see Nedim Şener v. Turkey, no. 38270/11, § 115, 8 July 2014; Şık v. Turkey, no. 53413/11, § 104, 8 July 2014; and Gözel and Özer v. Turkey, nos. 43453/04 and 31098/05, § 56, 6 July 2010). As to the interview conducted by the journalist A.S. with the persons who had taken the prosecutor hostage, the Court considers it undeniable that the interview, carried out in the midst of a terrorist operation with one of the perpetrators, had news or information value and that the way in which the journalist conducted the interview – as highlighted by the antagonistic nature of the questions – had distanced him clearly from the person being interviewed. Taken overall, the interview, which amounted to the broadcasting of statements made by a third party, could not objectively have appeared to have as its purpose the propagation of the ideas of left-wing extremists, but on the contrary sought to expose the young militants and their violent attitudes (see, to similar effect, Jersild v. Denmark, 23 September 1994, §§ 33-35, Series A no. 298). 174. Thirdly, the stance taken by the articles and messages in question was broadly one of opposition to the policies of the government of the day. They contained points of view and positions corresponding to those expressed by the opposition political parties and by groups or individuals whose political views were at variance with those of the political authorities. The criticisms voiced in the articles and messages were in some cases accompanied by proposals for alternative policies to those pursued by the government and by suggestions that a change of government or of government policy would be better for Turkey. 175. Hence, detailed examination of the applicants ’ alleged acts, which at first glance were indistinguishable from the legitimate activities of political opposition, shows that those acts fell within the exercise of their freedom of expression and freedom of the press, as guaranteed by domestic law and by the Convention. There is nothing to indicate that they were part of an overall plan pursuing an aim in breach of the legitimate restrictions imposed on those freedoms. The Court therefore considers that the acts in question enjoyed a presumption of conformity with domestic law and with the Convention and were not, generally speaking, capable of grounding a “reasonable suspicion” that the applicants had committed criminal offences. (3) Notion of “asymmetric warfare” advanced by the prosecution 176. The Court also observes that the prosecuting authorities accused the applicants of attempting, using the tactics of “asymmetric warfare”, to manipulate public opinion and disguise the truth in order to slander the government and the President of the Republic, and of acting in accordance with the objectives of terrorist organisations in order to create domestic upheaval and render the country ungovernable 177. The Court notes that the use in peacetime of the notion of “asymmetric warfare”, an expression denoting a method of counter ‑ propaganda deployed in wartime, as referred to by the prosecuting authorities and taken into consideration by the other authorities involved in this case, has the overall effect of linking expressions of opinion by political opponents, criticising the political authorities without promoting the use of violence, to the campaign of violence conducted by certain criminal organisations on the pretext of advocating similar opinions. In the Court ’ s view, this approach is liable to result in any adversary or opponent of the political authorities being treated as a member or sympathiser of a terrorist organisation. 178. In the present case the Court notes that, in order to justify the applicants ’ pre-trial detention, the judicial authorities concerned created confusion between, on the one hand, criticism of the government in the context of public debate and, on the other hand, the pretexts used by the terrorist organisations to justify their violent acts. They characterised criticism levelled legitimately at the authorities in the context of public debate, in accordance with freedom of expression and press freedom, as assisting terrorist organisations and/or disseminating propaganda in favour of those organisations. 179. In the Court ’ s view, such an interpretation of the criminal law is not only difficult to reconcile with the domestic legislation recognising public freedoms, but also posed a considerable risk to the Convention system, resulting in any person expressing a view at odds with the views advocated by the government and the official authorities being characterised as a terrorist or a person assisting terrorists. Such a situation is incapable in a pluralist democracy of satisfying an objective observer of the existence of a reasonable suspicion against journalists who are aligned with the political opposition but do not promote the use of violence. (iii) Conclusion regarding Article 5 § 1 of the Convention 180. In the light of these observations the Court considers that, even assuming that all the newspaper articles cited by the national authorities were attributable to the applicants, the latter could not be reasonably suspected, at the time of their placement in detention, of having committed the offences of disseminating propaganda on behalf of terrorist organisations or assisting those organisations. In other words, the facts of the case do not support the conclusion that a reasonable suspicion existed against the applicants. Accordingly, the suspicion against them did not reach the required minimum level of reasonableness. Although imposed under judicial supervision, the contested measures were thus based on a mere suspicion. 181. Moreover, it has likewise not been demonstrated that the evidence added to the case file after the applicants ’ arrest, in particular the evidence in the bill of indictment and the evidence produced while they were in detention, amounted to facts or information capable of giving rise to other suspicions justifying their continued detention. The fact that the first ‑ instance and appeal courts accepted the facts relied on by the prosecution as evidence of the applicants ’ guilt does nothing to alter this finding. 182. In particular, the Court notes that the acts for which the applicants were held criminally responsible came within the scope of public debate on facts and events that were already known, that they amounted to the exercise of Convention freedoms, and that they did not support or advocate the use of violence in the political sphere or indicate any wish on the applicants ’ part to contribute to the illegal objectives of terrorist organisations, namely to use violence and terror for political ends. 183. As regards Article 15 of the Convention and Turkey ’ s derogation, the Court notes that the Turkish Council of Ministers, chaired by the President of the Republic and acting in accordance with Article 121 of the Constitution, passed several legislative decrees during the state of emergency placing significant restrictions on the procedural safeguards laid down in domestic law for anyone held in police custody or pre-trial detention. Nonetheless, in the present case, it was under Article 100 of the CCP that the applicants were placed in pre-trial detention on charges relating to the offence set out in Article 220 of the Criminal Code. It should be noted in particular that Article 100 of the CCP, which requires the presence of factual evidence giving rise to strong suspicion that the person has committed an offence, was not amended during the state of emergency. Instead, the measures complained of in the present case were taken on the basis of legislation which was in force prior to and after the declaration of the state of emergency. Consequently, the measures complained of in the present case cannot be said to have complied with the conditions laid down by Article 15 of the Convention, since, ultimately, no derogating measure was applicable to the situation. To conclude otherwise would negate the minimum requirements of Article 5 § 1 (c) of the Convention. 184. The Court therefore concludes that there has been a violation of Article 5 § 1 of the Convention in the present case on account of the lack of reasonable suspicion that the applicants (except for Turhan Günay and Ahmet Kadri Gürsel ) had committed a criminal offence. 185. Having regard to the above finding, the Court considers it unnecessary to examine separately whether the reasons given by the domestic courts for the applicants ’ continued detention were based on relevant and sufficient grounds as required by Article 5 §§ 1 (c) and 3 of the Convention (see, to similar effect, Şahin Alpay v. Turkey, no. 16538/17, § 122, 20 March 2018). ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 186. The applicants (including Turhan Günay and Ahmet Kadri Gürsel ) alleged a violation of Article 5 § 4 of the Convention on the grounds that the Constitutional Court had not complied with the requirement of “speediness” in the context of the applications they had brought before it to challenge the lawfulness of their pre-trial detention. Article 5 § 4 of the Convention provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 187. The Government contested the applicants ’ argument. The parties ’ submissionsThe Government The Government The Government 188. First of all the Government submitted that when the applicants had been released pending trial they had ceased to have victim status for the purposes of Article 5 § 4 of the Convention. Accordingly, their application to the Court should be rejected in this regard as being incompatible ratione personae. 189. Next, referring to statistics on the Constitutional Court ’ s caseload, the Government stated that in 2012 1,342 applications had been lodged with that court; in 2013 that number had risen to 9,897, and in 2014 and 2015 respectively there had been 20,578 and 20,376 applications. Since the attempted military coup, there had been a dramatic increase in the number of applications to the Constitutional Court: a total of 103,496 applications had been lodged with it between 15 July 2016 and 9 October 2017. Bearing in mind this exceptional caseload for the Constitutional Court and the notice of derogation of 21 July 2016, the Government submitted that it could not be concluded that that court had failed to comply with the requirement of “speediness”. The applicants 190. The applicants reiterated their assertion that the Constitutional Court had not ruled “speedily” within the meaning of Article 5 § 4 of the Convention. They alleged that, owing to the considerable delay in reviewing the lawfulness of the pre-trial detention measures based on suspicions which they regarded as clearly improbable, an application to that court could no longer be considered effective in respect of these kinds of violations of the right to liberty. The third-party intervenersThe Commissioner for Human Rights The Commissioner for Human Rights The Commissioner for Human Rights 191. The Commissioner for Human Rights noted that the Constitutional Court ’ s case-law concerning Article 5 of the Convention conformed to the principles established by the Court in its own case-law. While acknowledging the scale of the Constitutional Court ’ s caseload since the attempted coup, he emphasised that it was essential for the proper functioning of the judicial system that that court should give its decisions speedily. The Special Rapporteur 192. The Special Rapporteur likewise noted that since the declaration of the state of emergency the Constitutional Court had been faced with an unprecedented caseload. The Court ’ s assessmentAdmissibility Admissibility Admissibility 193. The Court reiterates that it has found Article 5 § 4 of the Convention to be applicable to proceedings before domestic constitutional courts (see, in particular, Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 254, 4 December 2018; see also Smatana v. the Czech Republic, no. 18642/04, §§ 119-24, 27 September 2007, and Žúbor v. Slovakia, no. 7711/06, §§ 71 ‑ 77, 6 December 2011). Accordingly, having regard to the jurisdiction of the Turkish Constitutional Court, the Court has previously concluded that Article 5 § 4 is also applicable to proceedings before that court (see, for example, Koçintar v. Turkey ( dec. ), no. 77429/12, §§ 30 ‑ 46, 1 July 2014). 194. The Court further reiterates that the primary purpose of Article 5 § 4 of the Convention is to secure to a person deprived of his or her liberty a speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release. The Court considers that the requirement of speediness of the review is therefore relevant while that person ’ s detention lasts. While the guarantee of speediness is no longer relevant for the purpose of Article 5 § 4 after the person ’ s release, the guarantee of efficiency of the review should continue to apply even thereafter, since a former detainee may well have a legitimate interest in the determination of his or her detention even after being released (see Žúbor, cited above, § 83). 195. In the present case the Court observes that the applicants lodged their individual applications with the Constitutional Court on 26 December 2016 and that they were released pending trial on 9 March 2018 (in the case of the applicant Mehmet Murat Sabuncu ), on 25 April 2018 (in the case of the applicant Akın Atalay ) and on 28 July 2107 (in the case of the remaining applicants). Their release pending trial put an end to the alleged breach of Article 5 § 4 of the Convention resulting from the failure by the Constitutional Court to speedily examine their complaint concerning the unlawfulness of their detention (see Žúbor, cited above, § 85, and the references cited therein). The Court is therefore called upon to examine in the present case the applicants ’ complaints of failure to comply with the speediness requirement under Article 5 § 4 in the Constitutional Court proceedings, between the dates on which the applicants ’ constitutional applications were lodged and the dates of their release pending trial. Accordingly, it rejects the Government ’ s argument that these complaints are incompatible ratione personae with the provisions of the Convention. 196. The Court further finds that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. Merits 197. The Court reiterates the principles arising from its case-law concerning the requirement of “speediness” within the meaning of Article 5 § 4 of the Convention, as summarised, in particular, in its judgments in Mehmet Hasan Altan (cited above, §§ 161-63) and Şahin Alpay (cited above, §§ 133-35) and in its decision in the case of Akgün v. Turkey (( dec. ), no. 19699/18, §§ 35-44, 2 April 2019). In those cases it noted that in the Turkish legal system, anyone in pre-trial detention could apply for release at any stage of the proceedings and could lodge an objection if the application was rejected. It also observed that the question of detainees ’ continued detention was automatically reviewed at regular intervals of no more than thirty days. Accordingly, it held that it could tolerate longer periods of review by the Constitutional Court. However, in the case of Mehmet Hasan Altan, cited above, the period before the Constitutional Court to be taken into consideration was fourteen months and three days; in the case of Şahin Alpay, cited above, it was sixteen months and three days; and in the case of Akgün, cited above, it was twelve months and sixteen days. Bearing in mind the complexity of the applications and the Constitutional Court ’ s caseload following the declaration of a state of emergency, the Court considered that this was an exceptional situation. Consequently, although periods of twelve months and sixteen days, fourteen months and three days and sixteen months and three days before the Constitutional Court could not be described as “speedy” in an ordinary context, in the specific circumstances of those cases the Court held that there had been no violation of Article 5 § 4 of the Convention. 198. In the present case, the Court notes that the periods to be taken into consideration are sixteen months in the case of the applicant Akın Atalay, fourteen months and eleven days in the case of the applicant Mehmet Murat Sabuncu, eight months and twenty-nine days in the case of the applicant Ahmet Kadri Gürsel, and seven months and two days in the case of the remaining applicants, and that these periods all fell within the period of the state of emergency, which was not lifted until 18 July 2018. It considers that the fact that the Constitutional Court did not deliver its judgment dismissing the applicants ’ applications until 2 May 2019, some two years and four months later, is not relevant in calculating the period of time to be taken into consideration from the standpoint of Article 5 § 4 of the Convention, since all the applicants had been released by that date. 199. The Court therefore considers that its findings in the cases of Akgün, Mehmet Hasan Altan and Şahin Alpay, all cited above, are also applicable in the context of the present application, although the situation of Akın Atalay appears to be borderline in terms of possible parallels with the cases cited above. The Court emphasises in that connection that the applicants ’ applications to the Constitutional Court were complex, as this was one of the first cases raising complicated issues concerning the pre-trial detention of journalists on account of their newspaper ’ s editorial stance, and because the applicants had pleaded their case extensively before the Constitutional Court, arguing not only that their detention had not been based on any valid grounds, but also that the accusations against them were unconstitutional. Moreover, the Court considers that account must also be taken of the exceptional caseload of the Constitutional Court during the state of emergency in force from July 2016 to July 2018, and of the measures taken by the national authorities to tackle the problem of that court ’ s backlog (see Mehmet Hasan Altan, cited above, § 165; Şahin Alpay, cited above, § 137; and Akgün, cited above, § 41). In that connection the Court stresses the distinction to be made between the present case and the case of Kavala v. Turkey in which the applicant had remained in pre-trial detention for the eleven months elapsing between the lifting of the state of emergency on 18 July 2018 and the delivery of the Constitutional Court ’ s judgment on 28 June 2019 (see Kavala v. Turkey, no. 28749/18, § 195, 10 December 2019). 200. In the light of the foregoing considerations, although the review by the Constitutional Court in the present case could not be described as “speedy” in an ordinary context, in the specific circumstances of the present case the Court considers that there has been no violation of Article 5 § 4 of the Convention. ALLEGED VIOLATION OFARTICLE 10 OF THE CONVENTION 201. The applicants (except for Turhan Günay and Ahmet Kadri Gürsel ) alleged mainly a breach of their right to freedom of expression on account of their initial and continued pre-trial detention. In particular, they complained of the fact that the editorial stance of a newspaper criticising certain government policies had been considered as evidence in support of charges of assisting terrorist organisations or disseminating propaganda in favour of those organisations. They relied in that connection on Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 202. The Government contested the applicants ’ argument. The parties ’ submissionsThe Government The Government The Government 203. The Government submitted that the applicants lacked victim status since the criminal courts had not convicted them in a final judgment. For the same reasons, the complaint under Article 10 of the Convention should be declared inadmissible for failure to exhaust domestic remedies. 204. As to the lawfulness of the interference, the Government submitted that the criminal offence in question had been clearly proscribed by the articles of the CC that made it an offence to belong to an organisation deemed to be criminal in nature or to aid and assist such an organisation. 205. In the Government ’ s submission, the instances of interference complained of had pursued several aims for the purposes of the second paragraph of Article 10 of the Convention, namely the protection of national security and public safety and the prevention of crime and disorder. 206. As to the necessity of the interference in a democratic society, the Government submitted that the applicants had been detained and tried not for their journalistic activities but in order to answer charges of knowingly assisting organisations deemed to be criminal in nature, mainly the PKK and FETÖ/PDY. The applicants had been suspected of assisting the terrorist organisations FETÖ and the PKK by attempting to undermine public support for the administrative and criminal proceedings instituted against the suspected members of those organisations and to exert pressure on the members of the security forces and on judges to ensure that those proceedings did not result in a process of lustration concerning the perpetrators or in the latter ’ s conviction. The applicants 207. The applicants pointed out that they had been detained for lengthy periods of time. Their placement in detention for allegedly assisting terrorist criminal organisations, on the basis of the activities of Cumhuriyet ’ s journalists reflecting the newspaper ’ s editorial stance, constituted in itself a breach of their freedom of expression. That deprivation of liberty had prevented them from carrying on their occupation as journalists and had resulted, in their case and in the case of other journalists, in self-censorship in the exercise of their professional activity, particularly when it came to expressing their opinions in public debate concerning the conduct of the political or judicial authorities, including with regard to the proceedings taken against persons suspected of belonging to organisations deemed to be criminal. 208. Furthermore, the applicants submitted that the provisions of the CC on the basis of which they had been charged were not clear and foreseeable, in so far as there was confusion, in their view, between the individual criminal responsibility of the author of a newspaper article and the responsibility of the proprietor or editor-in-chief of the newspaper. That distinction should have been clear since a Constitutional Court judgment of 18 June 2006 on the subject, which had rejected the argument that the proprietor or editor-in-chief of a newspaper could be held responsible where the author of the article had been identified. They alleged that they had been prosecuted for articles whose authors had indeed been known, on the basis of a finding of criminal responsibility not provided for by the CC. 209. The applicants further submitted that the judicial authorities did not accuse them of having in any way actively contributed to the violent actions allegedly planned and carried out by the illegal organisations in question. Moreover, it was not necessary in a democratic society to protect the judicial authorities against criticisms made in good faith or to imprison journalists who voiced such criticism in monitoring and commenting upon the measures taken against persons suspected of being members of those organisations. 210. The applicants also complained of the fact that the Government had opted for criminal-law sanctions, in breach of the right to freedom of expression, instead of responding to political criticism through the major communication channels available to them in order to inform the public. The third-party intervenersThe Commissioner for Human Rights The Commissioner for Human Rights The Commissioner for Human Rights 211. Relying mainly on the findings made during his visits to Turkey in April and September 2016, the Commissioner for Human Rights observed firstly that he had repeatedly highlighted the widespread violations of freedom of expression and media freedom in Turkey. He expressed the view that Turkish prosecutors and courts interpreted anti-terrorism legislation in a very broad manner. Many journalists expressing dissent or criticism against the government authorities had been placed in pre-trial detention purely on account of their journalistic activities, without any concrete evidence. The Commissioner for Human Rights thus rejected the Government ’ s assertion that the criminal proceedings instituted against journalists were unconnected to their professional activities, finding that it lacked credibility in that often the concrete evidence included in investigation files concerning journalists related to their journalistic activities. He submitted that neither the attempted coup nor the dangers represented by terrorist organisations could justify measures entailing severe interference with media freedom, such as the measures he had criticised. 212. The Commissioner for Human Rights observed that the illegal organisations FETÖ/PDY and the PKK, which the applicants had been accused of assisting, were on opposite ends of the political spectrum. The Special Rapporteur 213. The Special Rapporteur submitted that anti-terrorism legislation had long been used in Turkey against journalists expressing critical opinions about government policies. Nevertheless, since the declaration of the state of emergency, the right to freedom of expression had been weakened even further. Since 15 July 2016, 231 journalists had been arrested and more than 150 remained in prison, and the evidence produced against them was very vague or non-existent. 214. The Special Rapporteur stated that any interference would contravene Article 10 of the Convention unless it was “prescribed by law”. It was not sufficient for a measure to have a basis in domestic law; regard should also be had to the quality of the law. Accordingly, the persons concerned had to be able to foresee the consequences of the law in their case, and domestic law had to provide certain safeguards against arbitrary interference with freedom of expression. The intervening non-governmental organisations 215. The intervening non-governmental organisations submitted that restrictions on media freedom had become significantly more pronounced and prevalent since the attempted military coup. Stressing the important role played by the media in a democratic society, they stated that journalists were often detained for dealing with matters of public interest. They complained on that account of arbitrary recourse to measures involving the detention of journalists, which were also designed to ensure self-censorship. The Court ’ s assessmentAdmissibility Admissibility Admissibility 216. The Court considers that the Government ’ s objections set out in paragraph 186 above, and contested by the applicants, raise issues that are closely linked to the examination of whether there has been an interference with the applicants ’ rights and freedoms under Article 10 of the Convention. It therefore decides to join them to the merits. 217. The Court further notes that these complaints, with the exception of those submitted under this provision by the applicants Turhan Günay and Ahmet Kadri Gürsel, are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. Merits (a) Fundamental principles 218. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313; Castells v. Spain, 23 April 1992, § 42, Series A no. 236; Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; and Jersild, cited above, § 37). 219. Specifically, freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society (see Lingens v. Austria, 8 July 1986, § 42, Series A no. 103, and Castells, cited above, § 43). 220. Although the press must not overstep certain bounds, in particular in respect of the prevention of disorder and the protection of the reputation of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to the administration of justice (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997 ‑ I; The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30; and Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204). Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999 ‑ III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick, cited above, § 38; Thoma v. Luxembourg, no. 38432/97, §§ 45-46, ECHR 2001-III; and Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003 ‑ V). 221. Furthermore, there is little scope under Article 10 of the Convention for restrictions on political speech or on debate concerning questions of public interest (see Sürek and Özdemir v. Turkey [GC], nos. 23927/94 and 24277/94, § 60, 8 July 1999, and Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996 ‑ V). Moreover, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. Furthermore, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media (see Castells, cited above, § 46). 222. Freedom of political debate, which is at the very core of the concept of a democratic society, also includes the free expression by prohibited organisations of their views, provided that these do not contain public incitement to commit terrorist offences, or condone the use of violence. The public has the right to be informed of the different ways of viewing a situation of conflict or tension; in that regard the authorities must, whatever their reservations, allow all parties to express their point of view. In order to assess whether the publication of material emanating from prohibited organisations entails a risk of incitement to violence, consideration must be given, first and foremost, to the content of the material in question and the background against which it is published, for the purposes of the Court ’ s case-law (see, to similar effect, Gözel and Özer, cited above, § 56). In this connection it is apparent from the Court ’ s case-law that where the views expressed do not comprise incitement to violence – in other words unless they advocate recourse to violent actions or bloody revenge, justify the commission of terrorist offences in pursuit of their supporters ’ goals or can be interpreted as likely to encourage violence by expressing deep-seated and irrational hatred towards identified persons – Contracting States must not restrict the right of the general public to be informed of them, even on the basis of the aims set out in Article 10 § 2, that is to say the protection of territorial integrity and national security and the prevention of disorder or crime (see Sürek v. Turkey (no. 4) [GC], no. 24762/94, § 60, 8 July 1999; Gözel and Özer, cited above, § 56; Nedim Şener, cited above, § 116; and Şık, cited above, § 105). (b) Whether there was interference 223. The Court has previously found that certain circumstances which have a chilling effect on freedom of expression do in fact confer on those concerned – persons who have not been finally convicted – the status of victim of interference in the exercise of their right to that freedom (see, among other authorities, Dilipak v. Turkey, no. 29680/05, §§ 44 ‑ 47, 15 September 2015). It has made the same finding in relation to the detention of investigative journalists for almost a year under criminal proceedings brought for very serious crimes (see Nedim Şener, cited above, §§ 94 ‑ 96, and Şık, cited above, §§ 83 ‑ 85). 224. The Court observes in the present case that criminal proceedings were brought against the applicants for acts characterised as assisting terrorist organisations, on the basis of facts which consisted in the editorial stance adopted by the daily newspaper for which they worked in its presentation and assessment of current political developments. This characterisation of the facts also featured in the bill of indictment filed when the applicants were placed in pre-trial detention, in which the prosecuting authorities accused them of aiding and assisting a terrorist organisation, an offence carrying a heavy penalty under the Criminal Code. 225. The Court also notes that the applicants were kept in pre-trial detention for periods ranging from eight to seventeen months in the context of these criminal proceedings. It observes that the judicial authorities which ordered the applicants ’ initial and continued detention considered that there was serious and credible evidence that they were guilty of terrorism-related acts. 226. The Court considers that the applicants ’ pre-trial detention in the context of the criminal proceedings against them, for offences carrying a heavy penalty and directly linked to their work as journalists, amounted to an actual and effective constraint and thus constituted “interference” with the exercise by the applicants of their right to freedom of expression guaranteed by Article 10 of the Convention (see Nedim Şener, cited above, § 96, and Şık, cited above, § 85). On the basis of this finding, the Court dismisses the Government ’ s objection as regards the lack of victim status of the applicants other than Turhan Günay and Ahmet Kadri Yüksel. 227. For the same reasons, the Court likewise dismisses the Government ’ s objection of failure to exhaust domestic remedies in respect of the complaints under Article 10 of the Convention (see, mutatis mutandis, Yılmaz and Kılıç v. Turkey, no. 68514/01, §§ 37-44, 17 July 2008). (c) Whether the interference was justified 228. Such interference will breach Article 10 of the Convention unless it satisfies the requirements of the second paragraph of that Article. It therefore remains to be determined whether the interference was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 and was “necessary in a democratic society” in order to achieve them. 229. The Court reiterates that the expression “prescribed by law”, within the meaning of Article 10 § 2, requires firstly that the interference should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences, and that it should be compatible with the rule of law. A law which confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see, among many other authorities, Müller and Others v. Switzerland, 24 May 1988, § 29, Series A no. 133; Ezelin v. France, 26 April 1991, § 45, Series A no. 202; and Margareta and Roger Andersson v. Sweden, 25 February 1992, § 75, Series A no. 226 ‑ A). 230. In the present case the applicants ’ arrest and detention amounted to interference with their rights under Article 10 of the Convention (see paragraph 225 above). The Court has already found that the applicants ’ detention was not based on reasonable suspicion that they had committed an offence for the purposes of Article 5 § 1 (c) of the Convention, and that there has therefore been a violation of their right to liberty and security under Article 5 § 1 (see paragraph 184 above). It also notes that according to Article 100 of the Turkish Code of Criminal Procedure, a person may be placed in pre-trial detention only where there is factual evidence giving rise to strong suspicion that he or she has committed an offence, and considers in this connection that the absence of reasonable suspicion should, a fortiori, have implied an absence of strong suspicion when the national authorities were called upon to assess the lawfulness of the applicants ’ detention. The Court reiterates in this regard that sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and that no deprivation of liberty will be lawful unless it falls within one of those grounds (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 88, 15 December 2016). The Court further observes that the requirements of lawfulness under Articles 5 and 10 of the Convention are aimed in both cases at protecting the individual from arbitrariness (see paragraphs 143, 145 and 149 above as regards Article 5, and paragraph 228 above as regards Article 10). It follows that a detention measure that is not lawful, as long as it constitutes interference with one of the freedoms guaranteed by the Convention, cannot be regarded in principle as a restriction of that freedom prescribed by national law. It follows that the interference with the applicants ’ rights and freedoms under Article 10 § 1 of the Convention cannot be justified under Article 10 § 2 since it was not prescribed by law (see Steel and Others v. the United Kingdom, 23 September 1998, §§ 94 and 110, Reports 1998 ‑ VII, and, mutatis mutandis, Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, §§ 98-101, 11 February 2016). The Court is therefore not called upon to examine whether the interference in question had a legitimate aim and was necessary in a democratic society. 231. Accordingly, there has been a violation of Article 10 of the Convention. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION 232. Lastly, the applicants (except for Turhan Günay and Ahmet Kadri Gürsel ) alleged that their detention had been designed to punish them for their criticisms of the government. They contended that the purpose of their initial and continued detention had been to subject them to judicial harassment on account of their journalistic activities. They relied in that regard on Article 18 of the Convention taken together with Articles 5 and 10. Article 18 of the Convention provides: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” Admissibility 233. The Government submitted that Article 18 of the Convention did not have an autonomous role and could only be applied in conjunction with other provisions of the Convention. In their view, the complaints under Article 18 of the Convention should be declared inadmissible for the same reasons that they had put forward concerning the applicants ’ other complaints. 234. The applicants contested that argument. 235. The Court observes that it has found, in respect of the applicants other than Turhan Günay and Ahmet Kadri Gürsel, a violation of Article 5 § 1 of the Convention on account of the applicants ’ initial and continued detention in the absence of reasonable suspicion that they had committed the offences of which they were accused, and also, on the basis of the same facts, a violation of Article 10 on account of the unjustified interference with the applicants ’ freedom of expression. Taking the view that the complaint under Article 18 is closely linked to the complaints under those provisions, that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicants 236. In the applicants ’ submission, a number of features of the case demonstrated that the undeclared aim of their placement in pre-trial detention for serious offences had in fact been to punish and harass them for the critical commentaries published by the newspaper Cumhuriyet concerning the actions of the government and its sympathisers. They submitted that it was very common practice in Turkey to use pre-trial detention against journalists who criticised government policies. The poor situation with regard to press freedom in the country had been commented on in reports and statements by international observers including the member States and various bodies of the Council of Europe and the European Union. The Commissioner for Human Rights had also criticised the applicants ’ placement in detention in his memorandum of 15 February 2017. 237. The applicants alleged in particular that one of the undeclared aims of their pre-trial detention had been to punish the newspaper Cumhuriyet for having revealed facts which the government had sought to conceal. The facts referred to in the detention orders as the basis for the suspicions had provoked an immediate and vehement response from the members of the government. For instance, when Cumhuriyet had brought to light the affair concerning the lorries belonging to the intelligence services alleged to have transported weapons to armed Islamist groups in Syria, the President of the Republic had accused the newspaper of espionage and had stated: “Whoever wrote that article will pay dearly, I will not let the matter rest there”. The applicants added that Cumhuriyet ’ s former publication director, C.D., and the head of the newspaper ’ s Ankara office, E.G., had been arrested for espionage but had been released after a Constitutional Court judgment had found their detention to be unlawful in the absence of strong suspicions of guilt. They alleged that, following that judgment, the President of the Republic had stated as follows: “I will not comment on the Constitutional Court ’ s judgment, but I am not obliged to accept it. I will not abide by this judgment, I will not comply with it”. 238. The applicants alleged that another undeclared reason for their placement in detention was that the judicial authorities regretted the release pending trial of the former publication director, C.D., who had moved abroad after being released. Following an assassination attempt, C.D. had left the country, stating that his life was in danger and that he would remain abroad until the state of emergency had been lifted. In the orders concerning the applicants ’ pre-trial detention, the judges had stated that “the content of earlier investigation files show[ed] that the suspects [had] fled, by lawful or unlawful means, as soon as an opportunity [had arisen]”. 239. The applicants pointed out that three of them ( Bülent Utku, Mustafa Kemal Güngör and Akın Atalay ) had been lawyers of the newspaper Cumhuriyet whose task it was to defend the newspaper in criminal and civil proceedings brought on account of the articles which it published. The applicants contended that their pre-trial detention had pursued the undeclared purpose of making it difficult for the newspaper to defend its interests in judicial proceedings. 240. Furthermore, the public prosecutor who had been in charge of the investigation concerning them, from the beginning of the investigation until the filing of the bill of indictment (signed by a different prosecutor), had himself faced charges and was being tried for membership of one of the illegal organisations (in this instance, FETÖ) which the applicants were accused of assisting. There had been no prospect that this prosecutor, who himself feared being convicted of belonging to that illegal organisation, would conduct the judicial investigation in an objective and fair manner. (b) The Government 241. The Government contested the applicants ’ argument. They submitted that the system for the protection of fundamental rights and freedoms under the Convention rested on the assumption that the authorities of the High Contracting Parties acted in good faith. It was for the applicants to demonstrate convincingly that the authorities ’ real aim had differed from the one proclaimed. In that regard they considered that a mere suspicion was not sufficient to prove that Article 18 had been breached. 242. The Government argued that the criminal investigation in question had been conducted by independent judicial authorities. The applicants had been placed in pre-trial detention on the basis of the evidence that had been gathered and placed in the case file. Contrary to the applicants ’ assertion, that evidence was in no way linked to the fact that the newspaper for which they worked had adopted an editorial line opposed to the government ’ s policies. In accordance with the rule of law, no political party or State body, including the government, could intervene or issue instructions when it came to instituting investigations or ordering pre-trial detention, which were matters for the judicial authorities alone. 243. In the Government ’ s submission, the applicants had not furnished any evidence to show that the pre-trial detention in question had been imposed with a hidden intention. Furthermore, the criminal proceedings against the applicants were still pending and the allegations made in that regard would be verified at the end of those proceedings. The third-party interveners (a) The Commissioner for Human Rights 244. In the view of the Commissioner for Human Rights, it was difficult to see how the use of pre-trial detention against journalists in Turkey could be linked to one of the legitimate aims provided for in the Convention in that regard. Some of the criminal-law provisions concerning State security and terrorism were open to arbitrary application owing to their vague wording and the overly broad interpretation of the concepts of terrorist propaganda and support for a terrorist organisation, with those concepts encompassing statements and articles that clearly did not incite violence. In the aftermath of the attempted coup many journalists had faced unsubstantiated terrorism-related charges under such provisions, in connection with the legitimate exercise of their right to freedom of expression. The detention and prosecution of journalists under such grave charges resulted in a strong chilling effect on wholly legitimate journalistic activities and contributed to self-censorship among those who wished to participate in public debate. In the Commissioner ’ s view, numerous instances of judicial actions targeting not only journalists but also human rights defenders, academics and members of parliament exercising their right to freedom of expression indicated that criminal laws and procedures were currently being used by the judiciary to silence dissenting voices. (b) The intervening non-governmental organisations 245. The intervening non-governmental organisations submitted that Article 18 of the Convention would be breached where an applicant could show that the real aim of the authorities was not the same as that proclaimed. They pointed out that the restriction of freedom of expression and political criticism was not one of the legitimate purposes of pre-trial detention enumerated in Article 5 of the Convention. 246. According to these organisations, where restrictions on applicants ’ freedom of expression formed part of a wider campaign to silence and punish anyone engaged in critical journalism, under problematic criminal laws that were increasingly restrictive of fundamental rights and freedoms, the Court should find a violation of Article 18 of the Convention. An analysis of the comments made by high-ranking State officials and pro ‑ government media could assist in identifying the actual motivation of the State in prosecuting journalists. 247. The intervening non-governmental organisations further argued that following the attempted military coup on 15 July 2016, the government had misused legitimate concerns in order to redouble its already significant crackdown on human rights, inter alia by placing dissenters in pre-trial detention. The Court ’ s assessment 248. The Court refers to the general principles concerning the interpretation and application of Article 18 of the Convention as they were recently set out, particularly in its judgments in Merabishvili (cited above, §§ 287 ‑ 317) and Navalnyy v. Russia ([GC], nos. 29580/12 and 4 others, §§ 164 ‑ 65, 15 November 2018). 249. The Court observes at the outset that the applicants ’ main complaint was that they had been specifically targeted because of their newspaper ’ s editorial stance, which was considered to oppose the government. It notes that they also maintained that their initial and continued pre-trial detention had pursued an undeclared aim, namely to silence the newspaper ’ s criticism of the government and its sympathisers. 250. The Court notes that the measures in question, and those taken in the context of the criminal proceedings brought against other opposition journalists in Turkey, have been heavily criticised by the third-party interveners. However, as the political process and adjudicative process are fundamentally different, the Court must base its decision on “evidence in the legal sense”, in accordance with the criteria laid down by it in the Merabishvili judgment (cited above, §§ 310-17), and on its own assessment of the specific relevant facts (see Khodorkovskiy v. Russia, no. 5829/04, § 259, 31 May 2011; Ilgar Mammadov, cited above, § 140; and Rasul Jafarov v. Azerbaijan, no. 69981/14, § 155, 17 March 2016). 251. In the present case the Court has concluded above that the charges against the applicants were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention. It has found in particular that the measures taken against the applicants were not justified by reasonable suspicions based on an objective assessment of the alleged acts; instead, they were essentially based on written material which could not reasonably be considered as behaviour criminalised under domestic law but was related to the exercise of Convention rights, and in particular the right to freedom of expression. 252. Nevertheless, whilst the Government failed to substantiate their argument that the measures taken against the applicants were justified by reasonable suspicions, leading the Court to find a violation of Article 5 § 1 and Article 10 of the Convention, this would not by itself be sufficient to conclude that Article 18 has also been violated (see Navalnyy, cited above, § 166). Indeed, as the Court pointed out in Merabishvili (cited above, § 291), the mere fact that a restriction of a Convention right or freedom does not meet all the requirements of the clause that permits it does not necessarily raise an issue under Article 18. Separate examination of a complaint under that Article is only warranted if the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case. There is still a need to examine the question whether – in the absence of a legitimate purpose – there was an identifiable ulterior one (see Navalnyy, cited above, § 166). 253. The Court observes that the stated aim of the measures imposed on the applicants was to carry out investigations into the campaign leading to the attempted coup in 2016 and the campaigns of violence conducted by members of separatist or leftist movements, and to establish whether the applicants had indeed committed the offences of which they were accused. Given the serious disruption and the considerable loss of life resulting from these events, it is perfectly legitimate to carry out investigations into these incidents. In addition, it must not be overlooked that the attempted coup led to a state of emergency being declared throughout the country. 254. The Court observes that there appears to be nothing untoward in the chronological sequence of the acts of which the applicants were accused and the opening of the investigation concerning them (see, conversely, Kavala, cited above, §§ 225-28). The acts of which the applicants were accused in the investigation which was opened at the end of 2016 had occurred, for the most part, prior to or after the attempted coup of 15 July 2016. Those acts, most of which had occurred during 2015 and 2016, allegedly formed part of the preparations for the planned coup or of opposition to the measures taken against the alleged instigators of the coup attempt. The items reporting on the viewpoints of members of separatist or leftist organisations were published in 2015 and are thus no exception to this rule. It cannot therefore be said that an excessive length of time elapsed between the impugned acts and the opening of the criminal investigation in the course of which the applicants were placed in pre-trial detention. 255. The Court is prepared to accept that statements made in public by members of the government or the President concerning criminal proceedings against applicants could, in some circumstances, constitute evidence of an ulterior purpose behind a judicial decision (see Kavala, cited above, § 229; Merabishvili, cited above, § 324; and Tchankotadze v. Georgia, no. 15256/05, § 114, 21 June 2016). However, the Court notes in the present case that the statements by the President of the Republic referred to above related to a specific affair concerning the destination of lorries belonging to the intelligence services and used to transport weapons, and were not directed against the applicants themselves but rather against the newspaper Cumhuriyet as a whole under the editorial direction of C.D., its publication director at the time. Moreover, it should be noted that the Constitutional Court ruled in favour of C.D. and another of Cumhuriyet ’ s managers at the time, finding that the suspicions against them were unconstitutional. It is true that the statement by the President of the Republic to the effect that he would not abide by the Constitutional Court ’ s ruling, was not bound by it and would not comply with it, was clearly in contradiction with the basic tenets of the rule of law. However, such an expression of dissatisfaction does not in itself amount to evidence that the applicants ’ detention was ultimately motivated by reasons incompatible with the Convention. 256. As to the fact that a prosecutor who was himself charged with membership of the organisation FETÖ participated in the judicial investigation concerning the applicants, including the drafting of the bill of indictment, the Court considers that this fact in itself does not constitute decisive evidence of a violation of Article 18 of the Convention, as the applicants ’ initial and continued detention was based on orders made by a magistrate or by one or more members of the Assize Court, rather than on a decision of the public prosecutor ’ s office. Furthermore, when this situation came to light the prosecutor in question was removed from the investigation before the bill of indictment was filed. That being said, the Court accepts that their detention based on such a serious charge had a chilling effect on the applicants ’ willingness to express their views in public and was liable to create a climate of self-censorship affecting them and all journalists reporting and commenting on the running of the government and on various political issues of the day. Nevertheless, this finding is likewise insufficient by itself to conclude that there has been a violation of Article 18. The Court further observes that the Constitutional Court subjected the applicants ’ complaints under Articles 5 and 10 of the Convention to thorough scrutiny and delivered its judgments in the case following in-depth discussion, as demonstrated by the large number of dissenting opinions. It follows that the elements relied on by the applicants in support of a violation of Article 18 of the Convention, taken separately or in combination with each other, do not form a sufficiently homogeneous whole for the Court to find that the applicants ’ detention pursued a purpose not prescribed by the Convention and representing a fundamental aspect of the case. In the light of the foregoing, the Court holds that it has not been established beyond reasonable doubt that the applicants ’ pre-trial detention was ordered for a purpose not prescribed by the Convention within the meaning of Article 18. Accordingly, there has been no violation of Article 18 of the Convention in the present case. APPLICATION OF ARTICLE 41 OF THE CONVENTION 257. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 258. The applicants claimed 20,000 euros (EUR) each for each month spent in pre-trial detention, in respect of the non-pecuniary damage they had allegedly sustained. 259. The Government submitted that the amounts claimed by the applicants were excessive in the light of the Court ’ s case-law on this issue, and that the claims should be dismissed. 260. With regard to non-pecuniary damage, the Court considers that the violations of the Convention have indisputably caused the applicants substantial damage. Accordingly, ruling on an equitable basis, it awards EUR 16,000 to each applicant in respect of non-pecuniary damage. Costs and expenses 261. The applicants did not seek reimbursement of any costs and expenses incurred before the Convention institutions or the domestic courts. That being so, the Court considers that no sum is to be awarded to them on that account. Default interest 262. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the interference with the applicants’ rights and freedoms under Article 10 could not be justified since it had not been prescribed by law. The Court also noted, in particular, that the acts for which the applicants had been held criminally responsible came within the scope of public debate on facts and events that were already known, amounted to the exercise of Convention freedoms, and did not support or advocate the use of violence in the political sphere or indicate any wish on the applicants’ part to contribute to the illegal objectives of terrorist organisations, namely to use violence and terror for political ends; |
477 | Right to interpretation and translation in criminal proceedings | II. RELEVANT LEGAL MATERIAL A. Domestic law 1. The Constitution of the Republic of Slovenia 48. The relevant provisions of the Constitution of the Republic of Slovenia read as follows: Article 29 (Legal Safeguards in Criminal Proceedings) “Anyone charged with a criminal offence must, in addition to absolute equality, be guaranteed the following rights: the right to have adequate time and facilities to prepare his defence; the right to be present at his trial and to conduct his own defence or to be defended by a legal representative; the right to present all the evidence that is to his benefit; the right not to incriminate himself or his relatives or those close to him, or to admit his guilt.” Article 62 (Right to Use One ’ s Own Language and Script) “Everyone has the right to use his own language and script as provided by law in the exercise of his rights and duties and in procedures before State and other authorities performing a public function.” 2. Criminal Procedure Act (a) Use of languages in criminal proceedings 49. The relevant provisions of the Criminal Procedure Act (Official Gazette no. 63/94 with the relevant amendments) governing the use of languages in criminal proceedings read as follows: Section 4 “(1) Any arrested person shall be advised immediately, in his native language or in a language he understands, of the reasons for his arrest. An arrested person shall immediately be instructed that he is not bound to make any statements, that he is entitled to the legal assistance of counsel of his own choosing and that the competent body is bound to inform his immediate family of his arrest at his request. ... Section 7 (1) Charges, appeals and other submissions shall be filed with the court in the Slovenian language. ... (3) A foreigner who has been deprived of his freedom shall have the right to file submissions with the court in his own language; in other cases foreign subjects shall be allowed to file submissions in their own language solely on the condition of reciprocity.” Section 8 “(1) Parties, witnesses and other participants in the proceedings shall have the right to use their own languages in investigative and other judicial actions and at the main hearing. If a judicial action or the main hearing is not conducted in the language of those persons, an oral translation of their statements and of the statements of others, and a translation of documents and other written evidence, must be provided. (2) Persons referred to in the preceding paragraph shall be informed of their right to have oral statements and written documents and evidence translated for them; they may waive their rights to translation if they know the language in which the proceedings are being conducted. The fact that they have been informed of their right, as well as their statements in that regard, should be placed on record. (3) Translations shall be done by a court interpreter.” (b) Grounds of appeal 50. The relevant provision of the Criminal Procedure Act concerning grounds of appeal reads as follows: Section 371 “(1) A material breach of the provisions of criminal procedure shall be deemed to exist: ... 3) ... where the defendant, counsel, the injured party acting as prosecutor or the private prosecutor was, notwithstanding his request, deprived of his right to use his own language during investigative or other court actions or at the main hearing and his right to follow the proceedings in that language ( section 8) ...; ... (2) A material breach of the provisions of criminal procedure shall also be deemed to exist if in preparation for a hearing or in the course of a hearing or in giving judgment the court omitted to apply a provision of this Act or applied it incorrectly, or if in the course of the hearing the court violated the rights of the defence, such that the act or omission influenced or might have influenced the legality and regularity of the judgment.” B. European Union instruments 51. The Charter of Fundamental Rights of the European Union (“the Charter”) enshrines the right to a fair trial (Article 47) and respect for the rights of the defence (Article 48(2)). 52. On 30 November 2009 the Council of the European Union adopted a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings (“the Roadmap”). The Roadmap gave rise to Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (“Directive 2010/64/EU ”). Directive 2010/64/EU lays down common minimum rules to be applied within the European Union for the purposes of interpretation and translation in criminal proceedings and in proceedings for the execution of the European arrest warrant. It came into force on 15 November 2010. 53. The following recitals of Directive 2010/64/EU are relevant: “ ... (7) Strengthening mutual trust requires a more consistent implementation of the rights and guarantees set out in Article 6 of the ECHR. It also requires, by means of this Directive and other measures, further development within the Union of the minimum standards set out in the ECHR and the Charter. ... (9) Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust. Such common minimum rules should be established in the fields of interpretation and translation in criminal proceedings. ... (14) The right to interpretation and translation for those who do not speak or understand the language of the proceedings is enshrined in Article 6 of the ECHR, as interpreted in the case-law of the European Court of Human Rights. This Directive facilitates the application of that right in practice. To that end, the aim of this Directive is to ensure the right of suspected or accused persons to interpretation and translation in criminal proceedings with a view to ensuring their right to a fair trial. ... (17) This Directive should ensure that there is free and adequate linguistic assistance, allowing suspected or accused persons who do not speak or understand the language of the criminal proceedings fully to exercise their right of defence and safeguarding the fairness of the proceedings. ... (19) Communication between suspected or accused persons and their legal counsel should be interpreted in accordance with this Directive. Suspected or accused persons should be able, inter alia, to explain their version of the events to their legal counsel, point out any statements with which they disagree and make their legal counsel aware of any facts that should be put forward in their defence. ... (21) Member States should ensure that there is a procedure or mechanism in place to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter. Such procedure or mechanism implies that competent authorities verify in any appropriate manner, including by consulting the suspected or accused persons concerned, whether they speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter. (22) Interpretation and translation under this Directive should be provided in the native language of the suspected or accused persons or in any other language that they speak or understand in order to allow them fully to exercise their right of defence, and in order to safeguard the fairness of the proceedings. ... (24) Member States should ensure that control can be exercised over the adequacy of the interpretation and translation provided when the competent authorities have been put on notice in a given case. ... (30) Safeguarding the fairness of the proceedings requires that essential documents, or at least the relevant passages of such documents, be translated for the benefit of suspected or accused persons in accordance with this Directive. Certain documents should always be considered essential for that purpose and should therefore be translated, such as any decision depriving a person of his liberty, any charge or indictment, and any judgment. It is for the competent authorities of the Member States to decide, on their own motion or upon a request of suspected or accused persons or of their legal counsel, which other documents are essential to safeguard the fairness of the proceedings and should therefore be translated as well. ... (32) This Directive should set minimum rules. Member States should be able to extend the rights set out in this Directive in order to provide a higher level of protection also in situations not explicitly dealt with in this Directive. The level of protection should never fall below the standards provided by the ECHR or the Charter as interpreted in the case-law of the European Court of Human Rights or the Court of Justice of the European Union. (33) The provisions of this Directive that correspond to rights guaranteed by the ECHR or the Charter should be interpreted and implemented consistently with those rights, as interpreted in the relevant case-law of the European Court of Human Rights and the Court of Justice of the European Union.” 54. Article 2 of Directive 2010/64/EU reads, in its relevant part, as follows: Right to interpretation “1. Member States shall ensure that suspected or accused persons who do not speak or understand the language of the criminal proceedings concerned are provided, without delay, with interpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings. 2. Member States shall ensure that, where necessary for the purpose of safeguarding the fairness of the proceedings, interpretation is available for communication between suspected or accused persons and their legal counsel in direct connection with any questioning or hearing during the proceedings or with the lodging of an appeal or other procedural applications. ... 4. Member States shall ensure that a procedure or mechanism is in place to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter. 5. Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for interpretation and, when interpretation has been provided, the possibility to complain that the quality of the interpretation is not sufficient to safeguard the fairness of the proceedings. ... 8. Interpretation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence.” 55. Article 3 of Directive 2010/64/EU reads, in its relevant part, as follows: Right to translation of essential documents “1. Member States shall ensure that suspected or accused persons who do not understand the language of the criminal proceedings concerned are, within a reasonable period of time, provided with a written translation of all documents which are essential to ensure that they are able to exercise their right of defence and to safeguard the fairness of the proceedings. 2. Essential documents shall include any decision depriving a person of his liberty, any charge or indictment, and any judgment. ... 5. Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for the translation of documents or passages thereof and, when a translation has been provided, the possibility to complain that the quality of the translation is not sufficient to safeguard the fairness of the proceedings. ... 7. As an exception to the general rules established in paragraphs 1, 2, 3 and 6, an oral translation or oral summary of essential documents may be provided instead of a written translation on condition that such oral translation or oral summary does not prejudice the fairness of the proceedings. 9. Translation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence.” 56. Article 5 § 1 of Directive 2010/64/EU deals with the quality of interpretation and translation, providing as follows: “1. Member States shall take concrete measures to ensure that the interpretation and translation provided meets the quality required under Article 2(8) and Article 3(9).” 57. Furthermore, Article 7 of Directive 2010/64/EU reads : Record-keeping “Member States shall ensure that when a suspected or accused person has been subject to questioning or hearings by an investigative or judicial authority with the assistance of an interpreter pursuant to Article 2, when an oral translation or oral summary of essential documents has been provided in the presence of such an authority pursuant to Article 3(7), or when a person has waived the right to translation pursuant to Article 3(8), it will be noted that these events have occurred, using the recording procedure in accordance with the law of the Member State concerned.” 58. On 22 May 2012 the European Parliament and the Council of the European Union adopted another directive relating to the measures set out in the Roadmap, namely Directive 2012/13/EU on the right to information in criminal proceedings (“Directive 2012/13/EU ”). It entered into force on 21 June 2012. 59. The following recitals of Directive 2012/13/EU are relevant: “ (25) Member States should ensure that, when providing information in accordance with this Directive, suspects or accused persons are provided, where necessary, with translations or interpretation into a language that they understand, in accordance with the standards set out in Directive 2010/64/EU. ... (35) Where information is provided in accordance with this Directive, the competent authorities should take note of this in accordance with existing recording procedures under national law and should not be subject to any additional obligation to introduce new mechanisms or to any additional administrative burden. (36) Suspects or accused persons or their lawyers should have the right to challenge, in accordance with national law, the possible failure or refusal of the competent authorities to provide information or to disclose certain materials of the case in accordance with this Directive. That right does not entail the obligation for Member States to provide for a specific appeal procedure, a separate mechanism, or a complaint procedure in which such failure or refusal may be challenged. ... (38) Member States should undertake all the necessary action to comply with this Directive. A practical and effective implementation of some of the provisions such as the obligation to provide suspects or accused persons with information about their rights in simple and accessible language could be achieved by different means including non-legislative measures such as appropriate training for the competent authorities or by a Letter of Rights drafted in simple and non-technical language so as to be easily understood by a lay person without any knowledge of criminal procedural law. ” 60. The relevant parts of Articles 3, 4 and 8 of Directive 2012/13/EU provide as follows: Article 3 Right to information about rights “1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively: (a) the right of access to a lawyer; (b) any entitlement to free legal advice and the conditions for obtaining such advice; (c) the right to be informed of the accusation, in accordance with Article 6; (d) the right to interpretation and translation; (e) the right to remain silent. 2. Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons. ” Article 4 Letter of Rights on arrest “ 1. Member States shall ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights. They shall be given an opportunity to read the Letter of Rights and shall be allowed to keep it in their possession throughout the time that they are deprived of liberty. ... 5. Member States shall ensure that suspects or accused persons receive the Letter of Rights written in a language that they understand. Where a Letter of Rights is not available in the appropriate language, suspects or accused persons shall be informed of their rights orally in a language that they understand. A Letter of Rights in a language that they understand shall then be given to them without undue delay. ” Article 8 Verification and remedies “ 1. Member States shall ensure that when information is provided to suspects or accused persons in accordance with Articles 3 to 6 this is noted using the recording procedure specified in the law of the Member State concerned. 2. Member States shall ensure that suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with this Directive. ” 61. Both of the aforementioned directives were incorporated into the Slovenian legal system by means of an amendment to the Criminal Procedure Act (Official Gazette, no. 87/2014), which was passed on 21 November 2014 and became applicable as of 20 March 2015. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION AS REGARDS THE ALLEGED DENIAL OF THE APPLICANT ’ S RIGHT TO USE A LANGUAGE OF WHICH HE HAD A SUFFICIENT COMMAND 62. The applicant complained that his right to a fair trial had been violated because he had not understood the language of the proceedings or the interpreting provided to him. He relied on Article 6 §§ 1 and 3 of the Convention of which the relevant parts read as follows: Article 6 “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ... (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” A. Admissibility 63. The Government argued that the applicant had failed to exhaust domestic remedies. They submitted that the applicant had not raised the substance of his complaint before the relevant national authorities. In particular, the applicant and his counsel, about whom the applicant had never complained at the domestic level, could have raised the issue of the inadequacy of the Russian interpreting or requested that another language be used, but had not done so during the questioning by the investigating judge, at any other time during the trial, or in their written submissions. The applicant ’ s complaint that he was not able to understand the script in which the translation of written documents had been provided to him had also been raised out of time. 64. The applicant disputed the Government ’ s allegations. He submitted that he should not be accused of not properly raising his complaints with the authorities and that he had in fact complained in his native language but had not been understood. 65. In the Court ’ s view, the Government ’ s preliminary objection that the applicant had failed to exhaust domestic remedies is so closely linked to the substance of his complaint that it should be joined to the merits of the case. 66. The Court further finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible having been established, it must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 67. That applicant alleged that he should have been able to use his native language, Lithuanian, as that had been the only way he could have defended himself effectively in the criminal proceedings. He argued that his knowledge of Russian had been weak and that he had not understood the translation of the documents as he had not been able to read Russian. No enquiry into his proficiency in Russian had been made during the proceedings against him, in breach of the State ’ s positive obligation under the Convention. He further argued that the burden of providing an explanation for the lack of translation and interpretation into his native language should be on the Government. In particular, the Government should justify their assumption that he understood Russian, a language quite different in its spoken form, and entirely different in its written form, from Lithuanian. He also stated that he had never studied Russian. 68. In reply to the Government ’ s argument regarding his participation in the trial, the applicant maintained that this might have been merely an appearance. The applicant referred to Şaman v. Turkey (no. 35292/05, 5 April 2011) and Baytar v. Turkey (no. 45440/04, 14 October 2014) in that connection. As regards the fact that he had signed the record of the hearings, he maintained that he had not known what he was signing. 69. The applicant submitted in his application to the Court that he had, a number of times during the trial, complained of having trouble understanding the language being spoken, but since he had made his complaints in Lithuanian no one had understood them. In replying to the Government ’ s arguments, the applicant disputed the idea that the authorities should have been formally put on notice regarding his difficulties. In that connection he submitted that he had found himself detained in a foreign country in criminal proceedings which had been swiftly concluded, namely at first instance within five months, and he had therefore not been in a position to complain at the national level. The applicant argued that the fact that he had not made a complaint, as established by the Constitutional Court and the Supreme Court, should itself be considered as a consequence of the breach of Articles 5 § 2 and 6 §§ 1 and 3 (a) and (e) of the Convention. He pointed out that the national court should be the ultimate guardian of the fairness of the proceedings, especially as his counsel had been appointed by a court. (b) The Government 70. The Government argued that neither the applicant nor his counsel had made any remarks about the appointment of the Russian interpreter during the investigation, at the hearings or on appeal. The first time the applicant had raised the issue of language had been in his application for the protection of legality, after his conviction had become final. The first time he had submitted that the trial court had failed to place on record his alleged complaint concerning the language used had been in his constitutional complaint. As regards his understanding of the written documents, the Government pointed out that the applicant and other co-defendants had asked for the written translation to be in Russian (see paragraph 21 above). The applicant had lodged a complaint about that matter only in the constitutional court proceedings. 71. As regards the applicant ’ s knowledge of Russian, the Government submitted that it was adequate and that his defence rights had not therefore been breached. In particular, the Government submitted that Russian had been an official language in Lithuania until 1990, when the country had declared its independence, and that the applicant, who had been born in 1980, must have learnt it at school. They also argued that, in any event, Russian was widely spoken in Lithuania; that the co-accused A.V. had said during questioning by the investigating judge that he and the applicant had been able to speak Russian (see paragraph 14 above); and that the applicant had demonstrated in the criminal proceedings that he had been able to follow the proceedings in Russian. The applicant had participated in the proceedings, examined witnesses, answered questions and had not complained of not being able to understand Russian, the language in which he had communicated in the proceedings. There had been one isolated incident, namely at the hearing of 11 July 2002, when he had asked for clarification of a translation (see paragraph 27 above). In sum, the Government maintained that the applicant had participated in the proceedings with the assistance of his counsel and a Russian interpreter and that if he had actually had problems in his oral or written communication he would have found a way to make his counsel or the trial court aware of them. (c) The third party 72. Fair Trials International, intervening as a third party, argued that the Court should adopt a demanding approach when assessing whether national courts have discharged their duty to check the adequacy of interpretation when put on notice as to an issue in that regard. It referred to the Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected and accused persons in criminal proceedings and Directive 2010/64/EU (see paragraphs 52 to 57 above). In particular, the third party argued that the failure to make a complaint at national level should by no means be regarded as determinative. In determining whether the domestic authorities had been “put on notice” such as to trigger their responsibility for any oversight, the Court should take into account any factual situation arising in the context of the national proceedings, which should be such as to alert the courts as to a possible issue with the adequacy of interpretation. It pointed out that when interpretation was provided in a language other than that of the accused, this should automatically put the authorities on notice and trigger their obligation to verify the adequacy of the interpretation. The authorities would then have to establish that the accused person had a sufficient command of the interpreting language. In this connection, it was necessary to have regard to the elements taken into account by the Court in assessing the impact of not providing interpreting for people who did not have a perfect command of the language of the proceedings, such as their linguistic knowledge, literacy and personal situation, and the complexity of the case. The national authorities were required to determine whether the accused person had a sufficient command of the third language by conducting similar checks. 73. Mechanisms for identifying the need for interpreting should be in place in the national proceedings, and a failure by the authorities to refute an applicant ’ s complaint with positive evidence should be a valid way of establishing a breach of the Convention. In particular, the Court should hesitate before accepting an assumption based on nationality as a satisfactory manner of assessing whether the interpreting provided was adequate. The focus should instead be on the concrete steps taken to verify that it was adequate. 74. Lastly, Fair Trials International submitted that issues such as the use of evidence obtained through inadequate interpretation and the effect the latter had on the exercise of other defence rights should be taken into account when assessing the fairness of the proceedings as a whole. If the domestic authorities failed to conduct a proper examination of the adequacy of interpretation, the Court should not speculate about the effect that inadequate interpretation might have had on the defence strategies. It should instead be prepared to conclude that the defence might have been conducted differently if proper interpreting had been provided and therefore find a violation of Article 6. 2. The Court ’ s assessment ( a ) General principles ( i ) General principles concerning Article 6 § 3 (a) and (e) of the Convention 75. Under paragraph 3 (a) of Article 6 of the Convention, any person charged with a criminal offence has the right “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”. Whilst this provision does not specify that the relevant information should be given in writing or translated in written form for a foreign defendant, it does point to the need for special attention to be paid to the notification of the “accusation” to the defendant. An indictment plays a crucial role in the criminal process, in that it is from the moment of its service that the defendant is formally put on notice of the factual and legal basis of the charges against him. A defendant not familiar with the language used by the court may be at a practical disadvantage if the indictment is not translated into a language which he understands (see Hermi v. Italy [GC], no. 18114/02, § 68, ECHR 2006 ‑ XII). 76. In addition, paragraph 3 (e) of Article 6 states that every defendant has the right to the free assistance of an interpreter. That right applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings (see Hermi, cited above, § 69). As regards the pre-trial phase, the Court notes that the assistance of an interpreter, as that of a lawyer, should be provided from the investigation stage, unless it is demonstrated that there are compelling reasons to restrict this right (see Baytar, cited above, § 50, and Diallo v. Sweden (dec.), no. 13205/07, § 25, 5 January 2010). 77. An accused who cannot understand or speak the language used in court has, therefore, the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court ’ s language in order to have the benefit of a fair trial (see Hermi, cited above, § 69). 78. However, paragraph 3 (e) does not go so far as to require a written translation of all items of written evidence or official documents in the procedure. In that connection, it should be noted that the text of the relevant provisions refers to an “interpreter”, not a “translator”. This suggests that oral linguistic assistance may satisfy the requirements of the Convention (see Husain v. Italy (dec.), no. 18913/03, 24 February 2005 ). 79. The fact remains, however, that the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events ( see ibid.; Hermi, cited above, § 70; and Güngör v. Germany (dec.), no. 31540/96, 17 May 2001). The Court notes in this connection that the obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation (see Kamasinski v. Austria, 19 December 1989, § 74, Series A no. 168), and Diallo, cited above, § 23). ( ii ) Assessment of interpreting needs 80. As regards its case-law to date, the Court observes that already in Brozicek v. Italy (19 December 1989, § 41, Series A no. 167) it indicated the need for verification of the defendant ’ s needs in terms of language assistance. In particular, it considered that the Italian authorities, which had been informed in an unequivocal manner of the applicant ’ s lack of knowledge of Italian, “ should have taken steps to comply with [his request for translation] ... unless they were in a position to establish that the applicant in fact had sufficient knowledge of Italian to understand from the notification the purport of the letter notifying him of the charges brought against him ”. Noting that there was no evidence in the file to indicate that the applicant had had sufficient knowledge of Italian, the Court found a violation of Article 6. Similarly, in Cuscani v. the United Kingdom (no. 32771/96, § 38, 24 September 2002 ), the Court took the view that after the authorities had been put on notice of the applicant ’ s inability to understand the proceedings, the verification of his need for interpretation had become a matter for the judge to determine. The Court held that the onus had been on the judge to ascertain whether the absence of an interpreter at the hearing would have prejudiced the applicant ’ s full involvement in a trial in which he had pleaded guilty. Furthermore, in Amer v. Turkey (no. 25720/02, § 83, 13 January 2009), the Court found no indication in the file as to the presence of an interpreter during the police ’ s questioning of the applicant, who claimed to have only limited knowledge of Turkish, which was the language of the proceedings. Noting that crucial evidence had been gathered during that questioning, and referring to the subsequent proceedings before the domestic court, the Court found that “ the verification of the applicant ’ s need for interpretation facilities at the time of his questioning by the police should have been a matter for the domestic courts to adequately examine with a view to reassuring themselves that the absence of an interpreter [when the applicant was] in police custody would not have prejudiced the applicant ’ s right to a fair trial ”. 81. As shown by the above examples from the Court ’ s case-law, it is incumbent on the authorities involved in the proceedings, in particular the domestic courts, to ascertain whether the fairness of the trial requires, or has required, the appointment of an interpreter to assist the defendant. In the Court ’ s opinion, this duty is not confined to situations where the foreign defendant makes an explicit request for interpreting. In view of the prominent place held in a democratic society by the right to a fair trial ( see Hermi, cited above, § 76, and Artico v. Italy, 13 May 1980, § 33, Series A no. 37 ), it arises whenever there are reasons to suspect that the defendant is not proficient enough in the language of the proceedings, for example if he or she is neither a national nor a resident of the country in which the proceedings are being conducted. A similar duty arises when a third language is envisaged to be used for the interpreting. In such circumstances, the defendant ’ s proficiency in the third language should be ascertained before the decision is taken to use it for the purposes of interpreting. 82. The Court further observes that the importance of verifying the defendant ’ s interpreting needs in order to ensure the right to a fair trial has been recognised also by the adoption of the European Union ’ s Directive 2010/64/EU. That Directive requires member States to ensure that a procedure or mechanism is in place to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter (see paragraphs 52 to 54 above ). 83. The Court has held on several occasions that in determining the defendant ’ s interpreting needs, the issue of his or her linguistic knowledge is vital (see, among many authorities, Hermi, cited above, § 71). It would add in this connection that the fact that the defendant has a basic command of the language of the proceedings or, as may be the case, a third language into which interpreting is readily available, should not by itself bar that individual from benefiting from interpreting into a language he or she understands well enough to fully exercise his or her defence rights. This follows from the requirement that the defendant be informed of the accusation in a language “ which he understands ” and from the requirement that the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself (see paragraph 79 above). Recital 22 of the Preamble to Directive 2010/64/EU more specifically provides that the interpretation and translation should be provided either in the native language of defendants or in any other language that they speak or understand in order to allow them fully to exercise their right of defence, and in order to safeguard the fairness of the proceedings (see paragraph 53 above). 84. The Convention leaves Contracting States wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6 (see Sejdovic v. Italy [GC], no. 56581/00, § 83, ECHR 2006 ‑ II ). It is therefore not for the Court to set out in any detail the precise measures that should be taken by domestic authorities with a view to verifying the linguistic knowledge of a defendant who is not sufficiently proficient in the language of the proceedings. Depending on different factors, such as the nature of the offence and the communications addressed to the defendant by the domestic authorities ( see Hermi, cited above, § 71), a number of open-ended questions might be sufficient to establish the defendant ’ s language needs. In this connection, the Court observes that recital 21 of Directive 2010/64/EU likewise leaves it to the authorities to choose the most appropriate manner of verification, which may include consulting the suspected or accused persons concerned (see paragraph 53 above). 85. Lastly, the Court draws attention to the importance of noting in the record any procedure used and decision taken with regard to the verification of interpreting needs, any notification of the right to an interpreter (see paragraphs 86 and 87 below ) and any assistance provided by the interpreter, such as oral translation or oral summary of documents, so as to avoid any doubts in this regard that may be raised later in the proceedings ( see, mutatis mutandis, Martin v. Estonia, no. 35985/09, § 90, 30 May 2013, and paragraphs 57 and 60 above ). ( iii ) Notification of the right to interpretation 86. The Court has already had occasion to point out, in the context of the right of access to a lawyer, the right to remain silent and the privilege against self-incrimination, that for these rights to be practical and effective it is crucial that the suspects be aware of them ( see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 272, ECHR 2016 ). The Court finds that for the very same reason it is important for the suspect to be aware of the right to interpretation, which means that he must be notified of such a right when “charged with a criminal offence” (see, mutatis mutandis, ibid.; see also Article 3 of Directive 2012/13/EU cited in paragraph 60 above ). 87. To be meaningful, the notification of the right to interpretation together with the other fundamental defence rights mentioned above should be done in a language that the applicant understands (ibid.). This is also implicit from the Court ’ s application of the “knowing and intelligent waiver” standard to any purported waiver of such rights ( see, mutatis mutandis, Dvorski v. Croatia [GC], no. 25703/11, § 101, ECHR 2015, and Ibrahim and Others, cited above, § 272). ( b ) Application of the above principles to the present case (i) As regards the reasons for the appointment of a Russian interpreter 88. The Court observes at the outset that the Kranj District Court seemed to have made some enquiries about the availability of interpreters for the applicant ’ s native language, Lithuanian, finding that no such interpreters were registered in Slovenia at the material time and that translation from and into that language would have required the assistance of the nearest Lithuanian Embassy (see paragraph 38 above). However, those enquiries were made only in the proceedings following the second-instance court ’ s judgment, without any further steps being taken. There is no indication in the file that any possibilities of securing a Lithuanian interpreter had been entertained by the authorities during the trial or the investigation. However, it appears that later in the proceedings, for instance before the Supreme Court ( see paragraphs 42 and 43 above ), a translation from Lithuanian into Slovenian and vice versa was obtained. 89. In any event, the Government did not argue that there had been compelling reasons (see paragraph 76 above) preventing the authorities from appointing a Lithuanian interpreter to assist the applicant. In fact, they argued that a Russian interpreter had been appointed to assist him because, in their view, he understood Russian (see paragraph 71 above). Indeed, the domestic courts ’ decisions concerning the present complaint (see paragraphs 41, 43 and 46 above) were based on the assumption that the applicant understood Russian and was able to follow the proceedings in that language. 90. In view of the foregoing, the Court cannot speculate as to whether or at what point a Lithuanian interpreter would have been available to the applicant, had the authorities actively sought one. Bearing in mind that Article 6 does not require that the defendant should necessarily be able to follow the proceedings in his or her native language, it will proceed to examine the main question, that is whether the applicant was provided with interpreting into a language of which he had a sufficient command for the purposes of his defence, and if not, whether this undermined the fairness of the proceedings as a whole. ( ii ) As regards the assessment of the applicant ’ s interpreting needs 91. In the present case, the authorities were clearly aware that the applicant, who was a Lithuanian national and had arrived in Slovenia only a short time before his arrest, did not understand the language of the criminal proceedings against him, which was Slovenian. After taking the applicant into custody, the police informed him, with the assistance of the Russian interpreter, of the reasons for his arrest and his right of access to a lawyer. When questioned by the investigating judge, the applicant was again assisted by the Russian interpreter. He continued to be assisted by that interpreter throughout the proceedings and during consultations with his court-appointed lawyer and was given Russian translations of the relevant court documents. However, although the records of the investigation and hearing are quite detailed, the Court cannot find any indication that the applicant was ever consulted as to whether he understood the interpreting and written translation into Russian well enough to conduct his defence effectively in that language. 92. In that connection, the Court cannot accept the Government ’ s suggestion that any general assumption about the applicant ’ s knowledge of Russian could be made on the basis of his Lithuanian nationality and rejects the Government ’ s arguments about the use of Russian in Lithuania (see paragraph 71 above), finding that the accuracy of those submissions has not been proven in any way. It further notes that no other explanation was provided by the Government as to what led the authorities, when appointing a Russian interpreter to assist the applicant, to believe that he had sufficient command of that language (see paragraph 71 above; and contrast Hermi, cited above, §§ 90 and 91, and Katritsch v. France, no. 22575/08, § 45, 4 November 2010 ). 93. The Court must therefore conclude that the authorities did not expressly verify (see paragraph 81 above) the applicant ’ s proficiency in Russian. The lack of such verification is an important element in the Court ’ s consideration of the case, as the effective protection of the rights enshrined in Article 6 § 3 (a) and (e) requires that a defendant be provided with interpreting into a language of which he has a sufficient command (see paragraphs 81 to 83 above). ( iii ) As regards other indications of the applicant ’ s knowledge of Russian 94. The Court must proceed to establish whether there are any other clear indications of the applicant ’ s proficiency in Russian. In this connection, the Court notes that there are no audio recordings of the questioning by the investigating judge or of the hearing and that no other evidence ( see, for example, Katritsch, cited above, § 45, and Hermi, cited above, § 90 ) by which to determine the applicant ’ s actual level of spoken Russian has been put forward by the Government. As to whether there are any indications, in the trial records or elsewhere, of his understanding of the interpreting language ( see paragraph 71 above ), the Court notes, firstly, that in the absence of any verification, his lack of cooperation during the police procedure and during his questioning by the investigating judge might be understood as being, at least in part, attributed to his difficulties in expressing himself and in following the proceedings in Russian (see paragraphs 11 and 13 above). 95. Secondly, the few rather basic statements the applicant made during the hearing, presumably in Russian (see paragraphs 26, 27 and 29 above), cannot be regarded as sufficient to show that he was in fact able to conduct his defence effectively in that language. 96. Thirdly, even though the Constitutional Court found that the applicant had “succeeded in communicating” with his counsel, it did not explain that finding by reference to the facts. Regrettably, its conclusion seems to be based on an assumption rather than on evidence of the applicant ’ s linguistic proficiency or of actual communication with his counsel (see paragraph 46 above). 97. In conclusion, although the applicant appeared to have been able to speak and understand some Russian, a fact which he has not denied (see paragraph 67 above), the Court does not find it established that his proficiency in that language was sufficient to safeguard the fairness of the proceedings. (iv) As regards the lack of a complaint or of a request to replace the interpreter during the trial 98. It remains for the Court to examine the Government ’ s argument that neither the applicant nor his counsel made any remarks about the appointment of the Russian interpreter during the investigation, at the hearings or on appeal ( see paragraphs 70 and 71 above ). 99. As regards the applicant, the Court finds it important to note that there is no indication in the file that the authorities informed him of his right to interpreting into his mother tongue or of his basic right to interpreting into a language he understood (see paragraphs 43, 46, 48 and 49 above). The Government gave no justification for that failure. The Court emphasises in this connection that the notification of the right to interpretation was an integral part of the authorities ’ duty to provide adequate language assistance to the applicant in order to secure the right to a fair trial – a duty which was at the centre of the applicant ’ s appeal on points of law and his constitutional complaint (see paragraphs 37, 44, 86 and 87 above). Moreover, under domestic law the applicant was entitled to interpreting into his native language and the authorities were obliged, under domestic procedural law, to inform him of that right and to make a record of such notification and of the applicant ’ s response to it (see paragraphs 46, 48 and 49 above). 100. In the Court ’ s view, the lack of such notification of the right to interpretation, coupled with the applicant ’ s vulnerability as a foreigner who had arrived in Slovenia only a short time before the arrest and had been detained during the proceedings, and his limited command of Russian, could well explain the lack of any request for a different interpreter or complaint in this regard until later in the proceedings, at which point he was able to use his native language (see paragraphs 37 to 46 above). The Court further observes that the Constitutional Court considered the applicant ’ s situation to be one of an exceptional nature, with the consequence that he had not been required to exhaust regular remedies (see paragraphs 41 and 46 above). 101. As regards the lack of complaints by the applicant ’ s counsel, the Court reiterates that although the conduct of the defence is essentially a matter between the defendant and his or her counsel, whether counsel has been appointed under a legal - aid scheme or privately financed, the ultimate guardians of the fairness of the proceedings – encompassing, among other aspects, the possible absence of translation or interpretation for a non-national defendant – are the domestic courts (see Hermi, cited above, § 72, and Cuscani, cited above, § 39). The failure by the applicant ’ s legal representative to raise the issue of interpretation did not therefore relieve the domestic court of its responsibility under Article 6 of the Convention. (v) Conclusion 102. In view of the above, the Court considers that it has not been established in the present case that the applicant received language assistance such as to allow him to participate actively in the trial against him. This, in the Court ’ s view, is sufficient to render the trial as a whole unfair. 103. There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention. In the light of that conclusion, the Government ’ s objection as to the non- exhaustion of domestic remedies must be rejected. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 104. The applicant complained under Article 5 § 2 of the Convention, that he had not been promptly informed, in a language he could understand, of the reasons for his arrest. He also complained, under Article 6 §§ 1 and 3 (a) and (e) of the Convention that there had not been enough Russian interpreters. He also alleged that there had been a breach of Articles 13 and 14, taken together with Article 6. 105. As regards the complaints concerning Article 5 § 2 and/or Article 6 §§ 1 and 3 (a) and (e) of the Convention set out in the preceding paragraph, the Government raised an objection of non-exhaustion of domestic remedies. They submitted that the applicant had not raised those complaints in the domestic proceedings, and in particular had not referred to them in his constitutional complaint. 106. The applicant disputed the Government ’ s submissions, arguing in essence that the authorities should have acted of their own motion and that as a foreigner he had not been in a position to complain. 107. The Court finds that the applicant did not complain in his constitutional complaint, which he was allowed to submit in his native language, that he had not been promptly informed of the reasons for his arrest in a language he could understand (see paragraph 44 above). The applicant also failed to complain at the domestic level of an insufficient number of available interpreters. Accordingly, and noting that those issues amount to complaints distinct from the ones examined above and should thus have been, at least in substance, raised before the domestic courts, the Government ’ s objection of a failure to exhaust domestic remedies must be upheld and that part of the application rejected as inadmissible pursuant to Article 35 §§ 1 and 4 in fine of the Convention. 108. The Court has also examined the applicant ’ s complaints under Articles 13 and 14 taken together with Article 6. 109. It notes that these complaints are linked to that under Article 6 §§ 1 and 3 of the Convention concerning the alleged denial of the applicant ’ s right to use a language of which he had a sufficient command in the criminal proceedings against him. They must therefore likewise be declared admissible (see paragraphs 66 and 103 above). 110. Having regard to its conclusion in respect of Article 6 §§ 1 and 3 of the Convention (see paragraphs 102 and 103 above), the Court concludes that no separate issue arises under this head. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 111. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 112. The applicant claimed 31,840 euros (EUR) for loss of earnings. He also claimed EUR 15,000 in respect of non-pecuniary damage. 113. The Government objected, arguing that the submissions about the applicant ’ s employment prospects were purely speculative and that there was no causal link between the alleged violation and the damages sought. They also argued that the amount claimed for non-pecuniary damage was excessive and unfounded. 114. The Court does not discern any causal link between the violation found and the pecuniary damage alleged and therefore rejects that claim (see, mutatis mutandis, Ibrahim and Others, cited above, § 315, and Ajdarić v. Croatia, no. 20883/09, § 57, 13 December 2011). On the other hand, the Court considers that the applicant must have suffered some non-pecuniary damage on account of his conviction in violation of Article 6 §§ 1 and 3 of the Convention. That damage cannot be sufficiently compensated for by a finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,400 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 115. The applicant also claimed EUR 6,250 for his legal representation before the Court based on the terms of the agreement signed between him and his representative ( hourly rate of EUR 250 for about twenty-five hours ’ work). 116. The Government argued that the applicant ’ s claim was excessive, unreasonable and unfounded and that an agreement which departed from the official rates for lawyers would not be binding on the domestic courts. 117. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant entered into an agreement with his representative concerning his fees. Such an agreement – giving rise to obligations solely between the lawyer and the client – cannot bind the Court, which must assess the level of costs and expenses to be awarded with reference not only to whether the costs have actually been incurred, but also to whether they have been reasonably incurred (see, mutatis mutandis, East West Alliance Limited v. Ukraine, no. 19336/04, § 269, 2 3 January 2014 ). Moreover, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them (see, among many examples, Gaspari v. Slovenia, no. 21055/03, § 83, 21 July 2009). 118. In the present case, regard being had to the documents in its possession and to the above criteria, the Court considers it reasonable to award the sum of EUR 2, 500 covering costs for the proceedings before the Court. C. Default interest 119. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 §§ 1 and 3 (right to a fair trial / right to be informed promptly of accusation/ right to an interpreter) of the Convention, finding that, overall, the language assistance the applicant had received had not allowed him to actively participate in his trial, which had therefore been unfair. In particular, the Court noted that the authorities were obliged to ascertain the applicant’s competency in the Russian before making the decision to use it for the purpose of interpretation. It referred in this connection to the standards enshrined in the European Union’s Directive 2010/64/concerning the right to interpretation. |
126 | Placement measures | II. RELEVANT DOMESTIC LAW 124. Article 330 of the Italian Civil Code provides: “The court may declare parental rights forfeit if the parents do not perform or neglect the obligations inherent in their parental role or abuse the powers related thereto causing serious detriment to the child. In such eventuality, the court may, if there are serious grounds for so doing, order the child's removal from the family home.” 125. Article 333 of the Civil Code provides: “Where the conduct of one or both parents is not such as to give rise to their parental rights being declared forfeit under Article 330, but is nonetheless detrimental to the child, the court may adopt any measure that is appropriate in the circumstances and may even order the child's removal from the family home. These measures may be revoked at any time.” 126. Furthermore, Law no. 184 of 4 May 1983 on the fostering of minors and adoption, provides, inter alia, that a minor who has temporarily been deprived of a satisfactory family environment may be placed with another family, with a family-type community, or if it is not possible to provide him with a satisfactory family environment, in a children's home (section 2). 127. Section 4 of that law provides, inter alia, that among other matters that must be stipulated in an order placing the child with a family is its provisional duration (paragraph 3). In addition, section 5 provides that the family, home or community in whose care the child is placed must facilitate relations between the minor and his natural parents and his reintegration in his original family. 128. Section 9 imposes an obligation on children's homes to send six-monthly reports to the guardianship judge on the minor, his relations with the family of origin and his mental and physical welfare. The provision also requires the guardianship judge to report to the youth court on abandoned children in the home and to carry out six-monthly inspections. 129. Lastly, section 12 provides, inter alia, that where investigations have revealed the existence of relatives or other family members up to the fourth degree who have maintained meaningful contact with the minor and whose whereabouts are known, the president of the court shall order their attendance at court (paragraph 1). After hearing them, the president of the court may give them such instructions as shall be necessary to ensure that the minor receives emotional support, maintenance, an education and an upbringing (paragraph 3). the law I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 130. The first applicant, who purported also to be acting on behalf of her children, complained of infringements of Article 8 of the Convention in that her parental rights had been suspended, her children had been taken into care, the authorities had delayed before finally allowing her to see the children, too few contact visits had been organised and the authorities had placed the children at “ Il Forteto ”. 131. The second applicant also alleged a violation of Article 8, complaining that the authorities had discounted the possibility of her being given the care of her grandsons and delayed organising contact with them. 132. Article 8 is worded as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 133. The Government contested the applicants' arguments. 134. The Commission expressed the opinion that that there had been no violation on account of the suspension of parental rights or the children's placement at “ Il Forteto ”, and no violation of the second applicant's rights. Conversely, it considered that there had been a violation of Article 8 as regards contact between the first applicant and her children. A. The Government's preliminary objection regarding the first applicant's standing also to act on her children's behalf and, consequently, the Belgian Government's standing to intervene in the proceedings 135. The Italian Government contested, firstly, the first applicant's standing also to act on behalf of her children, as her parental rights had been suspended on 9 September 1997, there was a conflict of interest between her and the children and criminal proceedings were pending against her for offences against her children. In addition, the Government argued that the first applicant had never clearly stated that her application to the Court was made on behalf of her children, too. 136. The Government went on to contend that the Belgian Government had no standing to intervene, since their intervention was based solely on the fact that the elder child was a Belgian national. 137. The Commission rejected that objection, noting that it was clear from the first application that the first applicant's children were also applicants and represented by the same lawyer in the proceedings before it. It added that there was nothing to prevent minors applying to the Commission. Indeed, there was all the more reason to allow them to do so where they were represented by a mother who had a conflict of interest with the guardian whom the public authorities had entrusted with the task of looking after the children's interests in her stead. 138. The Court points out that in principle a person who is not entitled under domestic law to represent another may nevertheless, in certain circumstances, act before the Court in the name of the other person (see, mutatis mutandis, the Nielsen v. Denmark judgment of 28 November 1988, Series A no. 144, pp. 21-22, §§ 56-57). In particular, minors can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the Convention. Like the Commission, the Court considers that in the event of a conflict over a minor's interests between a natural parent and the person appointed by the authorities to act as the child's guardian, there is a danger that some of those interests will never be brought to the Court's attention and that the minor will be deprived of effective protection of his rights under the Convention. Consequently, as the Commission observed, even though the mother has been deprived of parental rights – indeed that is one of the causes of the dispute which she has referred to the Court – her standing as the natural mother suffices to afford her the necessary power to apply to the Court on the children's behalf, too, in order to protect their interests. 139. Moreover, the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 of the Convention and, whilst those purposes may sometimes be analogous, they need not always be so (see the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. 15, § 31). 140. Therefore, since the first applicant also has standing to act on behalf of the children, the Belgian Government are entitled to take part in the proceedings within the meaning of Article 36 § 1 of the Convention and Rule 61 § 2 of the Rules of Court, as the elder child also has Belgian nationality. 141. The Court accordingly concludes that the Government's preliminary objection must be dismissed, both as regards the locus standi of the first applicant's children and the standing of the Belgian Government to intervene in the proceedings. B. Compliance with Article 8: was the interference “in accordance with the law” and did it pursue a legitimate aim? 142. It was common ground that the impugned interference was in accordance with the law for the purposes of Article 8, the relevant provisions being, in particular, Articles 330 and 333 of the Civil Code (see paragraphs 124-25 above) and section 2 of Law no. 184 of 1983 (see paragraph 126 above). It is true that the applicants alleged a failure to apply certain provisions of the latter statute, notably those concerning the provisional length of the placement (section 4(3)), the duty of directors of care institutions to facilitate links with the family of origin (section 5), and the refusal to give consideration to putting the children in the care of their maternal grandmother (section 12(1)). However, those matters concern the manner in which the relevant domestic provisions were applied, not the legal basis for the impugned interference as such. They therefore relate to the issue whether the relevant provisions were applied in accordance with the Convention principles. 143. Furthermore, the parties also agreed that the impugned measures pursued a legitimate aim within the meaning of Article 8, namely “the protection of health or morals” and “the protection of the rights and freedoms of others”, as they were intended to protect the welfare of the first applicant's children. C. Compliance with Article 8: was the interference “necessary in a democratic society”? 1. Suspension of the first applicant's parental authority and the removal of the children (a) Submissions of those appearing before the Court ( i ) The first applicant 144. The first applicant contested the authorities' decision and stressed, inter alia, her determination to break free of the family background that had been damaged by her former husband's violence. That determination was shown notably by the fact that she had lodged a complaint against her former husband and separated from him. (ii) The Belgian Government 145. The Belgian Government considered that the suspension of parental rights appeared justified in view of the limited capacities of the first applicant and her former husband to bring up the children. (iii) The Italian Government 146. The respondent Government emphasised above all the gravity of the domestic circumstances of the first applicant, which had been marked by the sexual abuse which one of her friends had inflicted on the elder child for years and the repeated violence that characterised the relations between the members of the family. The Government also referred to the first applicant's complex personality and concluded that the measure in issue had been justified by the children's interests. (iv) The Commission 147. The Commission considered that since the children had been confronted over a very considerable period by situations that were undoubtedly harmful to their development, the interference by the authorities through the children's removal was justified in order to protect their interests. (b) The Court's assessment 148. The Court reiterates that “... it is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child ...” (see the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, pp. 33-34, § 72). Therefore, “... regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State ... enjoy[s] a certain margin of appreciation ...” (see the Hokkanen v. Finland judgment of 23 September 1994, Series A 299-A, p. 20, § 55). In this sphere, “... the Court['s] ... review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith ... In the second place, in exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced to justify the interferences at issue are 'relevant and sufficient ...' ” (see the Olsson (no. 1) judgment cited above, p. 32, § 68, and, mutatis mutandis, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, pp. 25-26, § 52). 149. The Court notes that the first applicant's domestic circumstances seriously deteriorated in 1994 (see paragraph 13 above). It is particularly struck by the negative role played by her former husband. The case file shows that it was he who was largely responsible for the violent atmosphere within the family through his repeated assaults on the children and his former wife, which led the first applicant to lodge a criminal complaint (see paragraph 13 above). 150. However, it must be noted, too, that even after separating from her former husband, the first applicant found it difficult to look after her children. In that connection, the Court attaches weight to the report of 9 June 1997 by the neuropsychiatrist employed by the local health authority (see paragraph 24 above), in which she expressed the view that the first applicant was suffering from a personality disorder and was incapable of managing the complex situation of her family and children. The problem is compounded by the severe trauma suffered by the elder child as a result of the paedophile abuse of him by a social worker who succeeded in ingratiating himself with the first applicant's family. 151. Under those circumstances, the Court agrees with the Commission on this point and considers that against that background the authorities' intervention, through the suspension of the first applicant's parental rights and the temporary removal of the children from their mother's care, was based on relevant and sufficient reasons and was justified by the need to protect the children's interests. Consequently, there has been no violation of Article 8 of the Convention on that account. 2. Contact between the first applicant and her children (a) Submissions of those appearing before the Court ( i ) The first applicant 152. The first applicant observed, firstly, that she could not understand why she had been prevented from seeing her elder son since the decision of 9 September 1997. 153. As to the accusations that had been made against her in July 1998, she submitted that it was absurd to have interrupted a relationship as sensitive as that between mother and son because, if at the end of the proceedings she was found innocent, she would have suffered irreversible harm. In that connection, she complained that the authorities had used double standards: the Youth Court had cited the accusations against her (even though they had not resulted in her being committed for trial) as the reason for separating her from her children for a lengthy period, whereas it had continued to place children at “ Il Forteto ”, despite the final convictions of two leaders of that community for serious offences against children in their care. 154. The first applicant also alleged that social services in fact had a very negative view of her that was in the process of strongly influencing her elder son to the point where he had shown a hostility towards her that had not previously been present. (ii) The Belgian Government 155. The Belgian Government submitted, as its principal contention, that when in March 1998 the Youth Court had ordered the implementation of a preparatory programme for contact with M., the issue whether the suspension of contact with G. should continue had not been raised, even though the psychiatric report that had been ordered by the Youth Court on 18 November 1997 had concerned both children. 156. As to the suspension of the contact with the younger son that had already been scheduled for 8 July 1998 the Belgian Government observed that while it was defensible in principle, in practice it had to be noted that: – the allegations that had culminated in the child being questioned had been known to the authorities for seven months (since 7 January 1998); – the matters revealed implicated only the child's father and there was only a possibility that the investigation would also encompass the first applicant, as the public prosecutor had indicated in his notes of 18 and 26 June 1998; – M. was not questioned until 27 February 1999, that is to say seven months later. 157. In fact, M. was not questioned until the Youth Court had delivered its decision of 22 December 1998 in which it ordered the implementation of a new preparatory procedure for the resumption of contact between the two children and their mother. The fact that the Youth Court had ordered a resumption of contact even before M. had been questioned in connection with the criminal proceedings considerably undermined its reasoning in the decision of 6 July 1998, while the harmful consequences of that decision for M., resulting from the abrupt halt to the preparatory sessions, could not be disregarded. 158. Even after the decision of 22 December 1998, the visits had begun late (on 29 April) after nineteen months' separation. In the Belgian Government's submission, the prevention of any contact over such a lengthy period constituted an extremely serious interference in the first applicant's family life, especially when the tender age of the younger son was taken into account. Accordingly, the inconsistencies in the authorities' decisions could not be regarded as compatible with the requirements of Article 8. (iii) The Italian Government 159. The respondent Government observed, firstly, that it was not until 4 November 1997, that is to say two months after the Youth Court's decision to place the children at “ Il Forteto ”, that the first applicant had complained for the first time that, contrary to the Youth Court's decision, she had not been given an opportunity to see her younger son. 160. The respondent Government went on to emphasise the ambivalent attitude of the first applicant. In order to have a better understanding of her personality, the Government suggested that it might be helpful to recall that during the course of the proceedings she had described herself on a number of occasions as a psychologist, a nurse and a gynaecologist. It was also appropriate to refer to the proceedings currently pending before the Florence Court concerning acts that she was presumed to have committed against her elder son (there being serious evidence of complicity on her part), to the attempted suicide of the daughter born of the first applicant's first marriage as a result of the domestic violence of which she had been victim, and to the statements of the first applicant's sister to the Florence Youth Court. 161. The Government also argued that there was a need for preparatory counselling before contact visits, and that such counselling should be provided at brief intervals so as to avoid a preferential relationship developing between the mother and M., the younger son, as that would create serious tension in the relationship between the two brothers, a relationship which social services considered important to maintain. Furthermore, owing to the complexity of the programme and the desirability of verifying the effective needs of those concerned, it had been necessary to devote time to it. 162. The Government also referred to the difficulties social services had encountered as a result of the first applicant's aggressive and threatening behaviour, particularly towards her elder son, which the Government maintained was almost certainly linked to his statements in the criminal proceedings. 163. The postponement of the visit scheduled for 6 July 1998 had been fully justified by the requirements of the criminal investigation, since the children would have to be questioned and the first applicant's attitude towards her elder son had been threatening. 164. The respondent Government also pointed to the commitment of the services involved in guiding the children through an innovative programme aimed at the children's psychological and emotional recovery and at giving them a better understanding of their parents' role. In the light of that aim, the Government considered it desirable for the first applicant to cooperate with social services and to stop adopting a threatening stance against her elder son at meetings (the Government also referred to the first applicant's refusal to heed the advice of the social workers at the end of the meeting on 9 September 1999 to write to her elder son). 165. Contact visits would in any event resume in accordance with the decisions of the specialists dealing with the case. (iv.) The Commission 166. The Commission said that it was conscious of the particularly serious nature of the situation of the first applicant's children and did not question the need to take precautions owing to the suffering and trauma to which the children had been exposed both generally and during the visits from their mother. 167. It considered, however, that the total severance of relations that occurred just as it was adopting its report was unjustified. In its view, there were no exceptional circumstances capable of justifying a total severance of contact in the instant case. Indeed, the authorities themselves had envisaged a resumption of contact, at least with the younger son. In addition, total severance appeared still more unjustified in the present case in view of the first applicant's concerns over the community chosen for the placement, which concerns were understandable when, inter alia, the criminal antecedents of certain leaders of “ Il Forteto ” were taken into account. 168. As regards the suspension of visits that had already been scheduled with the younger son, the Commission expressed the opinion that the reason relied on by the authorities – namely the fact that an investigation had been started concerning the children's father – appeared weak, since the prosecution had not referred to any concrete evidence against the first applicant and had confined itself to alluding to a possible extension of the investigation to the mother. (b) The Court's assessment 169. The Court reiterates, firstly: “the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life; furthermore, the natural family relationship is not terminated by reason of the fact that the child has been taken into public care ...” (see the Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, p. 24, § 58). As the Court has previously observed, “... taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and ... any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child ... In this regard, a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child ... In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. In particular, ... the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child's health and development. (see the Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1008-09, § 78). 170. The Court considers, firstly, that the decision of 9 September 1997 to prohibit any contact between the first applicant and her elder son does not appear to have been based on sufficiently valid reasons. It is true that the child had gone through a very difficult and traumatic experience. However, as the Commission pointed out in its report, a measure as radical as the total severance of contact can be justified only in exceptional circumstances (see the B. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 78-79, § 77). While the complex circumstances that were harmful to the family life and the development of the children fully justified their being temporarily taken into care (and without underestimating the importance of appropriate psychological support for the mother), the grave situation within the first applicant's family did not, in the Court's view, justify by itself contact with the elder child being severed, regard being had not only to the attachment which the first applicant has always shown to her children, but also and above all to the authorities' decision to allow at the same time a resumption of contact with the younger child. Given that the authorities did not wish to deprive the first applicant of all parental rights permanently, the decision to exclude G. from all contact with his mother entails a partial breakdown in relations, including relations between the brothers, and does not tally with the declared aim of bringing about a resumption of relations with the mother. 171. The Court further notes that although the decision of 9 September 1997 provided for the organisation of visits with the younger son, nothing further was done until 6 March 1998, when the Florence Youth Court finally decided to require visits to be preceded by a preparatory programme for the mother. However, nothing came of that as, just two days before the first visit was due to take place on 8 July 1998 and at the request of the deputy public prosecutor, who had just started an investigation concerning the children's father (see paragraph 66 above), the Youth Court decided to suspend the visits that had already been scheduled. As regards that decision, the Court agrees with the Commission's opinion. It is difficult to identify the basis for the Youth Court reaching such a harsh decision, with its very negative psychological impact on those concerned, since the public prosecutor's application had been based on the mere possibility, unsupported by any objective evidence, that the scope of the investigation might be enlarged to include the mother. While it is true that the child had for the first time accused his mother in a letter sent to the public prosecutor on 19 June 1998 (see paragraph 113 above) of being implicated in the paedophile assaults on him, no serious attempt was made to verify the truth of that allegation, (and none was made until 11 November 1998 when the paedophile concerned was questioned and said that the allegation was untrue – see paragraph 115 above). The Court has to conclude that both the deputy public prosecutor and the Youth Court acted irresponsibly. 172. Indeed, a mere five months later, on 22 December 1998, the Youth Court gave the first applicant permission to see both children, even though officially the investigation was still pending. That appears to have been in flat contradiction to the decisions taken in the summer of that year. 173. However, once again, despite an order of the Youth Court for the resumption of visits by 15 March 1999, the first visit did not take place until 29 April 1999. Indeed, the delay was remarked on by the Youth Court itself in its note of 15 February 1999. To the extent that the delay was attributable to administrative difficulties (see paragraphs 84-85 above), it should not be forgotten that “in so fundamental an area as respect for family life, such considerations cannot be allowed to play more than a secondary role” (see the Olsson (no. 1) judgment cited above, p. 37, § 82). Such a delay was even more unacceptable in the instant case as, by that time, the first applicant and her children had already been separated for a year and a half. 174. What is more, the first visit did not prove to be the beginning of regular and frequent contact to assist the children and their mother in rebuilding their relationship. It is true that the elder son expressed disappointment over the first meeting in his letter of 6 May 1999 to the social workers (see paragraph 92 above). However, leaving aside the fact that letters sent by the elder child to the various authorities involved in the case must be treated with caution given the special situation in which the child found himself (as the Court will remark upon below – see paragraph 210 below), a sense of disappointment is perfectly understandable after such a long separation following events that were traumatic for the child. On the contrary, that situation should have incited social services to organise visits at regular intervals to help the children get through such a difficult period. Continued separation can certainly not be expected to help re-cement family bonds that have already been put under considerable strain. It should be recalled in this connection that “ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other” (see the Olsson (no. 1) judgment cited above, pp. 36-37, § 81). 175. The Court wishes to emphasise that it does not underestimate the importance of preparatory counselling. Indeed, it has previously said: “... the reunion of natural parents with children who have lived for some time in a foster family needs preparation. The nature and extent of such preparation may depend on the circumstances of each case, but it always requires the active and understanding cooperation of all concerned. Whilst national authorities must do their utmost to bring about such cooperation, their possibilities of applying coercion in this respect are limited since the interests as well as the rights and freedoms of all concerned must be taken into account, notably the children's interests and their rights under Article 8 of the Convention. Where contacts with the natural parents would harm those interests or interfere with those rights, it is for the national authorities to strike a fair balance ...” (see the Olsson v. Sweden (no. 2) judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90). In the instant case, however, it has to be observed that a single visit could not suffice to give the children an opportunity to re-establish bonds with their mother. Having regard to the fact that the first visit was preceded by a preparatory phase that had already contributed to delays, the Court fails to understand why it was not rapidly followed by further visits. It also considers that the Government have furnished no satisfactory explanation to justify the subsequent preparatory phase lasting a further four months and, a fortiori, the absence of any further visit after 9 September 1999. 176. Having carefully examined the video recordings of the first visit (see paragraph 91 above), the Court found both the visit itself and its outcome to be far less negative than the report of social services suggests. Social services were nonetheless given complete freedom to defer the second visit for fully four months. Moreover, the audio recordings of the second visit (see paragraph 94 above) attest to the considerable latitude given to social services to decide whether and when further meetings should take place. 177. On that subject, it should be borne in mind that there is a significant danger that a prolonged interruption of contact between parent and child or too great a gap between visits will undermine any real possibility of their being helped to surmount the difficulties that have arisen within the family and of the members of the family being reunited. (The danger is even greater for the younger child, who was very young when the separation occurred.) 178. Therefore, in the circumstances of the present case, the Court finds it unacceptable that social services should be able, as they have been in this instance, to alter the practical effect of judicial decisions establishing that contact will, in principle, take place. Given their limited number and irregular occurrence (there have been only two in almost three years), the visits arranged to date have for all intents and purposes been sporadic and make little sense when viewed in the light of the principles established under Article 8. 179. It is apparent from the case file that since the first visit social services have played an inordinate role in the implementation of the Youth Court's decisions and adopted a negative attitude towards the first applicant, an attitude for which the Court finds no convincing objective basis. In reality, the manner in which social services have dealt with the situation up till now has helped to accentuate the rift between the first applicant and the children, creating a risk that it will become permanent. The information contained in social services' latest report only goes to confirm that trend (see paragraph 96 above). Faced with that evolution in the situation, the Youth Court, which should in principle supervise the implementation of its decisions, approved the action being taken by social services, without conducting any thorough review. 180. The fact that there had been only two visits (after one and a half year's separation) since its decision of 22 December 1998 should have incited the Youth Court to investigate the reasons for the delays in the programme, yet it merely accepted the negative conclusions of social services, without conducting any critical analysis of the facts. When confronted with the first applicant's complaints regarding the assessment of the outcome of the visits, the Youth Court deemed it unnecessary to examine the audio-visual recordings of the visits (permission for them to be produced was given after substantial delay and only after they had been produced to the Court – see paragraph 109 above), and despite the favourable opinion of the guardianship judge did not even authorise the presence during visits and preparatory sessions of an independent specialist designated by the first applicant (see paragraphs 106-07 above). Not only does there appear to have been no relevant basis for such refusals, they also deprived the Youth Court of a means of reviewing the action taken by social services. 181. Article 8 demands that decisions of courts aimed in principle at facilitating visits between parents and their children so that they can re-establish relations with a view to reunification of the family be implemented in an effective and coherent manner. No logical purpose would be served in deciding that visits may take place if the manner in which the decision is implemented means that de facto the child is irreversibly separated from its natural parent. Accordingly, the relevant authorities, in this case the Youth Court, have a duty to exercise constant vigilance, particularly as regards action taken by social services, to ensure the latter's conduct does not defeat the authorities' decisions. 182. Lastly, having regard to the material in the case file, the Court cannot attach any weight to the uncorroborated statements of the first applicant's sister (see paragraph 117 above). The respondent Government cannot therefore explain away the authorities' and social services' conduct, as they apparently seek to do, by such vague information, especially as neither the decisions of the former nor the reports of the latter make any reference to it. The Court further observes that the case file contains conflicting evidence as to the current relations between the first applicant and the former husband (see paragraphs 97 and 111 above). However, there is nothing in the case file to shows that the uncertainty about the current relations between the first applicant and her former husband justifies the conclusion that the first applicant is incapable of re-establishing bonds with her children. It will be noted, too, that none of the authorities' decisions contains sufficient information in that regard. 183. In conclusion, the Court considers that the authorities failed to strike a fair balance between the interests of the first applicant's children and her rights under Article 8 of the Convention. Consequently, there has been a violation of Article 8 on this point. 3. Decision to place the children with the “ Il Forteto ” community (a) Submissions of those appearing before the Court ( i ) The first applicant 184. The first applicant submitted that the philosophy of “ Il Forteto ”, based on the rejection of the natural family, has not evolved since the 1970s. The aim of “ Il Forteto ” would always be to separate children from their natural families, as G.'s letters confirmed. 185. It was apparent from the case file that in practice the children were throughout their placement looked after, accompanied and supervised by L.R.F. and L.G., as was shown, for example, by the tenor of L.G.'s letter of 7 January 1998 to the public prosecutor. A letter of that nature should have been sent by the president of the community or the foster parents, not a community member who, according to the Government, had only a minor role in the children's upbringing. 186. The first applicant further maintained that there were no real foster parents and that the children were in fact looked after by people other than those to whom the Youth Court had entrusted their care. It was significant, too, that G. never mentioned Mrs M.G. in his letters. 187. As to the supervision which the authorities were meant to exercise over “ Il Forteto ”, the first applicant contended that in practice the relevant authorities did not compile their reports on the dates indicated by the Government. Thus, the first report by social services had been compiled in February 1998, the second in June 1998 and the third only in November 1999. Moreover, the six-monthly inspections required by section 9 of Law no. 184 of 1983 had not taken place. 188. Lastly, the first applicant said that “ Il Forteto ” appeared to have been given considerable latitude in deciding on the arrangements for children in its care and to enjoy substantial support from social services. That fact, coupled with delays in implementing the authorities' decisions, compromised the effective application of those decisions. (ii) The Belgian Government 189. The Belgian Government noted firstly that the two leaders of “ Il Forteto ” who had been convicted in 1985 had not undergone rehabilitation and that at the time of the criminal proceedings the Italian authorities continued to entrust minors into their care. It added that contrary to the allegations of the Italian Government, it was apparent from the case file that the two leaders had played an active role in the proceedings concerning the first applicant's children. 190. While not endorsing the applicants' hasty conclusions that L.R.F. and L.G. continued to commit offences against children, the Belgian Government considered that care orders constituted such a serious interference in the family domain that their implementation had to be organised within a structure that was above all suspicion. As with Article 6 of the Convention, appearances were therefore relevant. Consequently, institutions fostering minors in difficulty had to provide every guarantee that they were reliable and competent. The presence within the structure of people with criminal convictions – albeit from long ago – seriously undermined the confidence which such institutions should inspire. 191. The Belgian Government also observed that “ Il Forteto ” carried on a commercial activity for profit, which was hardly consistent with the objectives of providing welfare assistance to minors. The participation of its members on consultative boards that provided the courts with opinions on whether care orders should be made seemed hardly appropriate. 192. Lastly, the methods used in “ Il Forteto ” appeared to be aimed at severing relations between the children and the natural family. That did not seem consistent with the spirit of fostering within the family implicit in Article 8 of the Convention. (iii) The Italian Government 193. The respondent Government recognised that the relevant authorities had probably been aware of L.R.F.'s and L.G.'s convictions when they decided to place the children at “ Il Forteto ”. However, the Government emphasised that, so far as public opinion in Tuscany was concerned, the charges against the two people concerned were perceived as being part of a battle between supporters and opponents of “ Il Forteto ”. Furthermore, at the end of a laborious trial in which the Court of Cassation had intervened twice, the two men had been acquitted on ten of the thirteen counts. As regards the offences of which L.R.F. and L.G. were convicted, the Government said that a committee was being constituted to gather evidence with a view to requesting a review. Neither of them had committed any further criminal offences since their conviction in 1985. 194. Moreover, “ Il Forteto ” enjoyed the confidence of many local and regional institutions and had been the subject matter of a number of studies. The Government cited in particular an article that had been published in Il Mulino, one of Italy's most famous publishing houses, based on research conducted on-site by psychologists, doctors, sociologists and neuropsychiatrists specialising in children. Moreover, the positive results obtained with children placed at “ Il Forteto ” had also prompted studies by institutions from other countries. Even the Florence Court of Appeal had, in its judgment of 1985, attached importance to the evidence of numerous witnesses attesting to the positive results obtained at “ Il Forteto ”. The relevant judge at the Youth Court had not noted anything negative about the community or its members. “ Il Forteto ” was also under the supervision of the Ministry of Employment, which had not noted any problems on its last inspection. Inspections were also carried out by the region and the province. In any event, minors at “ Il Forteto ” were closely supervised by the relevant social services departments and the Youth Court was kept informed at all times. 195. Against that background, convictions dating back more than twenty years lost some of their significance. 196. Furthermore, neither L.R.F. nor L.G. had played any role in the programmes for the rehabilitation of minors in the care of the community as, on the contrary, that task was the responsibility of the numerous social workers and specialised teams who worked under the supervision of the Youth Court. Mr G.C. and Mrs M.G. looked after the children and, with the agreement of social services, received help from Mrs M.C.-G., Mr L.G.'s wife, and Mr S. with the children's school activities (they attended a State school in the locality) and the various sessions preparing them for contact with their mother and grandmother. 197. As regards the letters written by the elder child, the Government considered that no significance attached to the fact that one of them had been written in the presence of the foster parents and Mr R., since the child's needs had changed and he often criticised his parents, particularly his mother, for failing to help him after they had been informed of the sexual abuse inflicted on him by a family friend. As to the letter of 2 March 1999, the Government, relying in the opinion of psychologists on this point, submitted that the elder child's signature, with the addition of the surname of one of his foster parents, attested to a positive attitude by him towards the persons looking after him. 198. It had to be stressed also that a number of items of evidence on the case file indicated that the children's psychological condition was constantly and markedly improving. 199. The Government concluded by saying that the placement of the first applicant's children at “ Il Forteto ” had been viewed positively by all the relevant services, which enjoyed the confidence of the Youth Court. In any event, there was no reason for modifying such a complex and difficult programme, particularly bearing in mind the first applicant's lack of cooperation. (iv) The Commission 200. The Commission expressed the view that the fact that the two members of the community concerned continued to hold important posts within “ Il Forteto ” was a cause for concern. It observed, however, that the first applicant's children had not been placed in the care of the community leaders concerned, added to which it was true that the offences for which they had been convicted dated back twenty years and there was nothing on the case file to allow of the conclusion that the persons concerned had committed other acts of the same type subsequently or, above all, that they had direct control over the children or a decisive influence over the foster parents. The Commission also considered that the improvement in the children's health meant that the risk that the authorities' choice of “ Il Forteto ” should prove to be manifestly contrary to the children's interests could be discounted. (b) The Court's assessment 201. The Court considers it appropriate first to restate certain principles established in its earlier decisions which may help to put the difficult issues to which this part of the application gives rise into context. In particular, in the Johansen v. Norway judgment cited above, the Court said (pp. 1003-04, § 64): “... the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in any event of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned ..., often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation ... The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake ... Thus, the Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed.” 202. The Court notes that two of the principal leaders and co-founders of “ Il Forteto ” were convicted in 1985 by the Florence Court of Appeal of the ill-treatment and sexual abuse of three handicapped people staying in the community. They were given an amnesty in respect of an alleged offence of fraudulently holding themselves out as psychologists with diplomas from the universities of Berne and Zürich (see paragraphs 32 and 33 above). Those convictions are an established fact, since there is a full copy of the Court of Appeal's judgment, which was upheld by the Court of Cassation, in the case file. Accordingly, the Court cannot attach any weight to the Government's argument that a committee is being constituted to gather evidence (of which no details are supplied) with a view to seeking a retrial. Nor does the Court find the Government's reference to public opinion in Tuscany at the time of the trial of relevance (see paragraph 193 above). 203. The Court is not called upon to express an opinion on “ Il Forteto ” as such or on the general quality of care which that community offers to children placed there. Nor is it for the Court to say whether or not the confidence which a number of institutions have in “ Il Forteto ” is justified. Furthermore, although the judgment of the Florence Court of Appeal in 1985 discloses information about the atmosphere and practices in “ Il Forteto ” at the end of the 1970s, that information refers to the situation in the community more than twenty years ago and the Court has no information enabling it to express a view on the situation at “ Il Forteto ” today. In any event, it is not for the Court to become involved in the debate between the supporters and opponents of “ Il Forteto ”. 204. However, the fact that the two members of the community convicted in 1985 continue to hold positions of responsibility within the community cannot be regarded as innocuous and for practical purposes means that a detailed examination of the concrete situation of the first applicant's children is called for. 205. The Court notes that, contrary to the assertions of the respondent Government, the evidence on the case file shows that the two leaders concerned play a very active role in respect of the first applicant's children. – L.R.F. attended the meeting of 8 September 1997, which ended with social services recommending to the Florence Youth Court that the first applicant's children be placed at “ Il Forteto ” (see paragraph 35 above). – At the interview on 15 December 1997, the elder child was accompanied by, inter alia, Mrs M.C.-G., who, as the Government recognised (see paragraphs 114 and 196 above), is in fact L.G.'s wife (see paragraph 56 above). – It was L.G. who signed the letter sent to the public prosecutor and the Youth Court on 7 January 1998 relating the incidents allegedly caused by the first applicant and her former husband when they attempted to see the children at “ Il Forteto ” (see paragraph 53 above). – On 29 June 1998 L.R.F. wrote a detailed letter on behalf of “ Il Forteto ” regarding the first applicant's children and recommending that the younger child's scheduled visits should be postponed (see paragraph 65 above). 206. The Court considers that those facts clearly attest to the active role played by those two members of the community in the care of the first applicant's children. It has strong reservations about the fact that, under arrangements made by the public authorities for taking children into care, two people who were convicted – albeit twenty years earlier – of the ill-treatment and abuse of persons entrusted into their care at the time can play such an active role within the same community. 207. The Court's reservations are reinforced by the fact that, as the Government acknowledged (see paragraph 193 above), the Youth Court was aware of the convictions of the two members of the community concerned when it took the decisions regarding the first applicant's children. Those reservations remain even though neither L.R.F. nor L.G. have committed any further offences since 1985 and there is nothing in the case file to indicate that they or other members of the community or persons staying there have abused or ill-treated the first applicant's children or other children staying at “ Il Forteto ”. A further contributory factor is the sexual abuse to which the elder child was subjected in the past (see paragraphs 14-19 above). The combination of those two factors (the past sexual abuse against the elder child and the criminal antecedents of L.R.F. and L.G.), fully account for the first applicant's concerns about her children's placement at “ Il Forteto ” and make them understandable from an objective standpoint, especially bearing in mind her position as a mother separated from her children. 208. It should also be noted that the authorities have at no point explained to the first applicant why, despite the men's convictions, sending the children to “ Il Forteto ” did not pose a problem. In the Court's view, such a failure to communicate is not compatible with the duties incumbent on States to act fairly and to provide information when taking serious measures interfering in a sphere as delicate and sensitive as family life. Unless full and pertinent explanations are given by the authorities concerned, parents should not be forced, as they were in the instant case, merely to stand by while their children are entrusted into the care of a community whose leaders include people with serious previous convictions for ill-treatment and sexual abuse. The situation was compounded by the following two sets of circumstances. 209. Firstly, some of the leaders of “ Il Forteto ”, including one of the two men convicted in 1985, appear to have contributed substantially to delaying or hindering the implementation of the decisions of the Florence Youth Court to allow contact between the first applicant and her children. Thus, it can be seen from the case file that after the decision of 9 September 1997 allowing the first applicant to see her younger son and before the Youth Court definitively decided on 15 March 1998 to make the resumption of contact with M. conditional on attending a preparatory programme, the leaders of “ Il Forteto ”, in disregard of the operative provisions of the Youth Court's decision, seem to have prevented the first applicant from seeing either child, but especially the younger son. Such conduct is, in the Court's view, unacceptable. In addition, it would appear that the letter sent by L.R.F. to the deputy public prosecutor on 29 June 1998 recommending that contact be deferred and the deputy public prosecutor's letter to the Youth Court just three days later implicitly suggesting that the scheduled visits (which the public prosecutor said he was aware of) should be postponed (see paragraphs 66 and 171 above) were not wholly unconnected. 210. Secondly, the evidence points to the first applicant's children having been subjected to the mounting influence of the leaders at “ Il Forteto ”, including, once again, one of the two men convicted in 1985. That influence was exerted with the aim of distancing the boys, particularly the elder boy, from their mother. Thus, the Court notes in particular that the latter acknowledged to a specialist on 27 February 1999 that the letter sent to the public prosecutor's office had been written in the presence, inter alia, of a person with the same first name as L.R.F. The Court cannot express any view as to the genuineness of the assertions made in the elder child's letters. However, the presence of adults, including, in all likelihood, L.R.F., when a 12-year-old child is writing letters to the president of a court or a public prosecutor cannot objectively be regarded as of no importance. Indeed, the Court finds the changes in attitude, particularly of the elder child towards his mother, worrying (an example of such a change can be seen in the letter of 2 March 1999 – see paragraph 87 above – which was sent just four days after he had told a specialist on 27 February 1999 – see paragraph 116 above – that he would be pleased to see his mother again). 211. In the Court's view, the facts show that the leaders of “ Il Forteto ” responsible for looking after the first applicant's children helped to deflect the implementation of the Youth Court's decisions from their intended purpose of allowing visits to take place. Moreover, it is not known who really has effective care of the children at “ Il Forteto ”, as the various people who accompany the children outside its confines do not appear merely to be assisting the foster parents as the Government asserted (see paragraph 196 above), since they are identified on a number of records as the foster parents (see paragraphs 56, 60 and 68 above). That doubt is confirmed by the evidence, which the Government did not contest, given by the two officially assigned experts (see paragraph 43 above). 212. That situation and the relevant leaders' criminal antecedents should have prompted the Youth Court to increase its level of supervision regarding the way in which the children were being looked after at “ Il Forteto ” and the influence of the leaders concerned over the children and their relations with their mother. However, that did not occur. In practice, the leaders concerned work in a community which enjoys very substantial latitude and does not appear to be subject to effective supervision by the relevant authorities. In that connection, the Court also notes that the respondent Government failed to produce sufficient evidence to show that the six-monthly inspections by the guardianship judge, required by section 9 of Law no. 184 of 1983, did in fact take place. Indeed, the respondent Government have not produced any reports by the guardianship judge relating to such inspections. 213. Furthermore, the negative impact on the prospects of rebuilding a relationship with the mother of the attitude and conduct of the people responsible for the children at “ Il Forteto ”, including the two leaders convicted in 1985, combines with the social services' negative attitude referred to above, and is partly responsible for depriving the first applicant of any serious prospect of one day being reunited with her children. 214. As regards the absence of any time-limit on the children's stay at “ Il Forteto ”, experience shows that when children remain in the care of a community for a protracted period, many of them never return to a real family life outside the community. Accordingly, the Court sees no valid justification for the failure to put a time-limit on the care order concerning the first applicant's children, especially as that failure appears to contravene the relevant provisions of Italian law, namely section 4 of Law no. 184 of 1983. 215. The fact of the matter is that the absence of any time-limit on the care order, the negative influence of the people responsible for the children at “ Il Forteto ”, coupled with the attitude and conduct of social services, are in the process of driving the first applicant's children towards an irreversible separation from their mother and long-term integration within “ Il Forteto ”. While a number of factors point to there having been a considerable improvement in the children's psychological and physical condition since the placement (see paragraphs 118-22 above), that process, which, it will be remarked, undermines both the role of the courts dealing with the case and of their decisions, presents a real danger that the relations between the first applicant and her children will be severed. 216. Consequently, the Court considers that the authorities have failed to show the degree of prudence and vigilance required in such a delicate and sensitive situation, and have done so to the detriment not just of the first applicant's rights but also of the superior interests of the children. Accordingly, in the circumstances described above, the uninterrupted placement to date of the children at “ Il Forteto ” does not satisfy the requirements of Article 8 of the Convention. 4. Position of the second applicant (a) Submissions of those appearing before the Court ( i ) The second applicant 217. The second applicant alleged, firstly, that section 12 of Law no. 184 of 1983, which accords priority to children being fostered with close relatives of known address, had been infringed since the possibility of the children living with her had been disregarded. In that connection, she said that G. had lived with her until 1992 and they enjoyed an excellent relationship. 218. She added that in order to comply with the Youth Court's recommendations she had moved to Italy where she lived in her own flat, not with her daughter. Despite that fact, the authorities continued to refuse to show any confidence in her, as they considered that she was not independent of her daughter. (ii) The Italian Government 219. The Italian Government, which did not deny that the relationship between the second applicant and her grandchildren came within the scope of the right to respect for family life guaranteed by Article 8, maintained that the authorities had examined the second applicant's requests and were working towards the gradual re-establishment of relations between the children and their grandmother. That said, the most recent developments, in particular, the second applicant's delay in contacting social services after the cancellation of the first preparatory session, betrayed, in the Government's view, a lack of enthusiasm for actually looking after the children. Referring to explanations given by social services, the Government also contended that priority had to be given to preparing the mother's visits. (iii) The Commission 220. The Commission considered that the authorities' decision not to respond to the second applicant's request for the children to be entrusted into her care was based on relevant grounds, in particular, the fact that it would have been undesirable for the authorities to lose all direct control over the children's situation. The Commission also described the second applicant's behaviour as incoherent. (b) The Court's assessment 221. The Court notes, firstly, that it was common ground that issues relating to the relations between the second applicant and her grandchildren were covered by Article 8 of the Convention. It also points out in that connection that “ 'family life', within the meaning of Article 8 includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life. 'Respect' for a family life so understood implies an obligation for the State to act in a manner calculated to allow these ties to develop normally” (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 21, § 45). 222. As to the second applicant's request to be given care of the children, the Court notes that section 12 of Law no. 184 of 1983 gives priority to children being placed with close members of the family living at a known address. The Court notes, however, that the evidence on the case file indicates that the second applicant would have substantial difficulty in looking after the children properly. She was unable to make herself available for an initial preparatory counselling programme prior to contact with the children, as she was living in Belgium (see paragraph 75 above). After moving to Italy, she had had to return to Belgium in the autumn of 1999 to resolve administrative problems connected with the invalidity benefit she receives for her handicapped son, who remains dependent on her (see paragraphs 110-11 above). Lastly, she was admitted to hospital in February 2000 with heart problems (see paragraph 112 above). It is difficult, moreover, for any decisive weight to be attached to the fact that the elder child lived with his grandmother in 1992: he was very young at the time and there is nothing to suggest a close and continuing relationship with the second applicant subsequently. The Court consequently considers that the authorities' decision not to entrust the children into the second applicant's care was based on reasons that remained relevant even after the second applicant's move to Italy, which in any event proved to be temporary. 223. With regard to contact between the second applicant and the children, the Court notes that her attitude was initially characterised by a degree of incoherence. As the Commission observed, it is difficult to comprehend why the second applicant should refuse to take part in any preparation before seeing the children on the grounds that she lived too far away when she had asked to be allowed to visit twice a week. 224. Subsequently, despite the decision of the Florence Youth Court on 22 December 1998 that contact between the second applicant and the children should start before 15 March 1999 after a preparatory programme rendered possible at that stage by the second applicant's move to Italy, she failed to get in touch but simply waited to hear from social services, even after the expiry of the time-limit fixed by the Youth Court. Nor did she consider it necessary to inform the authorities when she travelled to Belgium so that the two notices of appointment which social services did send, albeit belatedly, were to no avail. 225. Although the Court is not persuaded by the Government's explanation for the delay in implementing the Youth Court's order concerning the second applicant (the need for social services to concentrate on preparing contact with the first applicant), it considers that the second applicant has not furnished any valid explanation for her failure to act after the time-limit expired or to inform the relevant authorities when she travelled to Belgium. 226. In the Court's view, the second applicant's conduct betrays a lack of enthusiasm for seeing her grandchildren again, a factor which offsets the authorities' delay. 227. In the light of the foregoing considerations, the Court concludes that there has been no violation of Article 8 of the Convention as regards the second applicant. D. Applicability of Article 6 § 1 and Article 14 of the Convention 228. The applicants did not pursue before the Court their complaints of violations of Article 6 § 1 (for delays in the examination of their appeals before the domestic courts) and Article 14 of the Convention (for allegedly discriminatory treatment). 229. In its report, the Commission considered that in the circumstances of the case, and having regard in particular to the fact that at the date of its report no concrete action had been taken following the appeal of 3 December 1997, the complaint under Article 6 § 1 about the length of the proceedings should be regarded as having been absorbed by the issues related to Article 8 of the Convention. As to Article 14, it took the view that that provision was of no relevance to the instant case, as the applicants had not alleged any actual discrimination within the meaning of that Article. 230. In the light of its decision under Article 8, the Court sees no reason not to follow the conclusions of the Commission on this point and accordingly holds that no separate issue arises under these provisions of the Convention. II. ALLEGED violation of ARTICLE 3 OF THE CONVENTION A. Whether the treatment allegedly inflicted on the children at “ Il Forteto ” amounted to a violation of Article 3 of the Convention 231. The first applicant complained, on behalf of her children, of a violation of Article 3 of the Convention on account of the risk that they would be subjected to improper treatment at “ Il Forteto ”. In addition, the danger that the children would again be subjected to paedophile assaults or exposed to an environment in which such assaults had been carried out in the past by at least some members of the cooperative was in itself contrary to Article 3. 232. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 233. The Government contended in particular that there was no evidence on the case file to prove that the two leaders concerned, or other members of the community or people staying there, were abusing or ill-treating the first applicant's or other children staying at the home. 234. The Commission expressed the opinion that there was no concrete evidence in the case file apt to prove beyond all reasonable doubt that the children had been subjected to treatment contrary to Article 3. 235. Despite the fact that some of the witness statements produced by the first applicant (see paragraphs 38-40 above) give cause for concern and the Government have not contested their veracity, the Court agrees with the opinion of the Commission, as there is nothing on the case file to indicate that the children have been subjected to treatment contrary to Article 3 of the Convention at “ Il Forteto ”. It should also be noted in that connection that the first applicant has not lodged a criminal complaint with the relevant domestic authorities. Consequently, there has been no violation of Article 3. B. Whether the distress caused the applicants amounted to a violation of Article 3 of the Convention 236. In their memorial lodged with the Court on 3 March 1999, the applicants alleged that there had also been a violation of Article 3 of the Convention in that their situation, taken as a whole, had caused them suffering and distress. 237. The Court notes that that complaint, which in substance raises no separate issue from the issues arising under Article 8 of the Convention, was not declared admissible by the Commission. The applicants are therefore estopped from raising it. III. ALLEGED violation of ARTICLE 2 OF PROTOCOL No. 1 238. The first applicant complained, lastly, that her children did not have adequate schooling and that the only education they seemed to be receiving was that provided within the community. She alleged that there had therefore been a violation of Article 2 of Protocol No. 1. 239. Article 2 of Protocol No. 1 provides: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” 240. The Government maintained that the first applicant's allegations were unfounded as the children were under constant supervision. They added that some delay in the elder child's attending school had been inevitable in view of his delicate personal circumstances and the desirability of ensuring his gradual reintegration into the school system. 241. The Commission considered that the first applicant's fears no longer appeared founded as the case file showed, in particular, that the elder child was now attending school. The initial delay seemed, moreover, to have been warranted when the dramatic situation which he had just come through was taken into account. 242. The Court notes that the case file shows that the first applicant's elder son began school shortly after arriving at “ Il Forteto ” (see paragraph 47 above). The younger child has just reached school age and the Court notes form the case file that he is in fact attending a nursery school (see paragraph 123 above). Furthermore, with regard to the influence of “ Il Forteto ” on the supervision and education of the children, the Court refers to its conclusions on the placement of the children within that community (see paragraphs 201-16 above). 243. Consequently, there has been no violation of Article 2 of Protocol No. 1. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 244. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 245. The first applicant sought 100,000,000 Italian lire (ITL) in reparation for non-pecuniary damage. She also claimed ITL 700,000,000 under that head on behalf of the children for damage they had sustained. The latter claim was based, in particular, on the complaint that the authorities had not sought a solution allowing for the children to be placed with family relatives. 246. The first applicant also claimed ITL 300,000,000 in the event of a finding by the Court that the children's placement had not been suitable. 247. As regards pecuniary damage, the first applicant claimed ITL 15,000,000 for the loss of her former job, which she attributed to the difficulties caused by her children's situation that had meant her repeatedly having to take time off work. 248. The respondent Government confined themselves to alleging that there was no evidence supporting the first applicant's claims. They also contended that any finding of a violation of the Convention would give rise to complex and sensitive issues, particularly before the Committee of Ministers, regarding the adoption of individual measures. 249. The Court points out that by Article 46 of the Convention the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects (see, mutatis mutandis, the Papamichalopoulos and Others v. Greece ( Article 50 ) judgment of 31 October 1995, Series A no. 330-B, pp. 58-59, § 34). Furthermore, subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment. 250. Accordingly, under Article 41 of the Convention the purpose of awarding sums by way of just satisfaction is to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that cannot otherwise be remedied. 251. As regards pecuniary damage, the Court considers that the first applicant has not produced concrete evidence in support of her allegations. 252. As to the non-pecuniary damage, the Court considers that the first applicant undoubtedly sustained such damage, as the contact organised with her children to date has been inadequate, visits have been delayed, no explanation was given for the authorities' decision to place the children at “ Il Forteto ”, and the re-establishment of relations with the children was hindered by the conduct of those responsible for the children at “ Il Forteto ”. The Court further notes that since the children were taken into care on 9 September 1997, that is to say two years and ten months ago, the first applicant has seen them only twice and no contact has been arranged since 9 September 1999. It can reasonably be presumed that those circumstances taken as a whole have caused the first applicant substantial anxiety and suffering that have increased with the passage of time. Ruling on an equitable basis, the Court awards the first applicant ITL 100,000,000. 253. The Court considers, further, that the children personally sustained damage, too, as the increasing risk of an irreversible severance of ties with, in particular, their mother and the danger that their continued placement at “ Il Forteto ” would prevent them from one day enjoying family life outside the community did not tally with the authorities' avowed aim of protecting the children's interests. The Court therefore considers that it must take that damage into account with reference to the children's position as applicants and, ruling on an equitable basis, it awards each child in person ITL 50,000,000. B. Costs and expenses 254. The first applicant sought ITL 11,550,000 as reimbursement for the legal costs and experts' fees incurred in the proceedings before the Italian courts. 255. The first applicant further claimed ITL 121,463,603 for legal fees incurred before the Commission and the Court (and produced a fee note). In that connection, the first applicant's lawyer has requested that the fees be paid directly to her. To that end, she has produced a certificate that the first applicant has paid her the sum of ITL 800,000 on account. 256. The Government left the issue to the Court's discretion. 257. With regard to the costs incurred before the domestic courts, the Court observes that although at least part of those costs were incurred with a view to obtaining redress of the various violations of Article 8 of the Convention, the first applicant has failed to produce any evidence in support. Her claims under that head must therefore be dismissed. 258. As to the costs incurred before the Convention institutions, the Court considers that the case was indisputably complex. It nevertheless finds the sum requested by the first applicant's lawyer excessive. Ruling on an equitable basis and having regard to the practice of the Convention institutions on this subject, it considers a sum of ITL 26,250,000 to be reasonable. From that amount should be deducted the sum which the lawyer has received on account from the applicants (ITL 800,000) and the sums already paid to her by way of legal aid for the applicants that was granted by both the Commission and the Court. The latter amounts come to a total of 28,030.75 French francs (ITL 7,765,000). Accordingly, the balance payable to the applicant's lawyer, in accordance with her request, comes to ITL 17,685,000. C. Default interest 259. According to the information available to the Court, the statutory rate of interest applicable in Italy at the date of adoption of the present judgment is 2.5% per annum. | The Court held, notably, that there had been a violation of Article 8 (right to respect for family life) of the Convention, concerning the uninterrupted placement of the boys in “Il Forteto”. It noted in particular that the absence of any time-limit on the care order, the negative influence of the people responsible for the children at “Il Forteto”, coupled with the attitude and conduct of social services, were in the process of driving the first applicant’s children towards an irreversible separation from their mother and long-term integration within “Il Forteto”. |
192 | Prohibition of discrimination (Article 14 of the Convention) | II. RELEVANT INTERNATIONAL MATERIAL 31. A summary of the relevant international material concerning protection from domestic violence and discrimination against women has been made in the case of Opuz v. Turkey ( no. 33401/02, §§ 72-86, ECHR 2009). 32. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention. 33. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women, such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence were able to institute proceedings, make provisions to ensure that criminal proceedings could be instituted by the public prosecutor, and encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest. Member States should also ensure, where necessary, that measures were taken to protect victims effectively against threats and possible acts of revenge, and take specific measures to ensure that children ’ s rights were protected during proceedings. 34. With regard to domestic violence, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas. They should also penalise all breaches of the measures imposed on the perpetrator and establish a compulsory protocol so that the police, medical and social services followed the same procedure. 35. In its General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW/C/2010/47/GC.2), the Committee on the Elimination of Discrimination against Women found that “States parties have a due diligence obligation to prevent, investigate, prosecute and punish ... acts of gender based violence”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 36. Citing Article 3 of the Convention alone and in conjunction with Article 14 of the Convention, the applicant complained of the inaction of the Italian authorities, which had failed to protect and support her after the violence she had suffered. She claimed that those omissions and the inadequacy of the domestic legislative framework in combating domestic violence proved that she had been discriminated against on the basis of her gender. 37. The Articles referred to provide as follows : Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 38. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 39. The applicant submitted that after the serious incident of violence in November 2008, the authorities had failed to assist and support her and to protect her from any repetition of such violence. 40. The applicant argued that the violence she had suffered at the hands of her former partner had had a traumatic effect on her, causing her strong psychological distress from which she had not yet recovered. She had been unable to continue living in the same flat where the violence had occurred and had moved to a different floor of the same building. She had experienced difficulty sleeping and she and her son P. had undergone psychological support therapy. 41. The applicant further contended that the authorities had not informed her about the status of the criminal proceedings against J.C.N. In particular, she had not been informed when he had been granted house arrest. She claimed to have become aware of that when her former partner called her using the phone of a common friend. The applicant also criticised the conduct of the carabinieri who, when asked for explanations about the house arrest granted to J.C.N., had limited themselves to reassuring her about the suitability and safety of the chosen facility. 42. Furthermore, the applicant submitted that at the beginning of his detention J.C.N. had sent several letters to her which she had perceived as threatening. Such conduct had ceased once his lawyer had been informed. 43. The applicant also claimed that while serving his sentence, her former partner had not followed any psychological recovery programme and that he continued to constitute a threat to her life and the lives of her children. 44. The applicant also argued that the proximity to her home of the facility hosting J.C.N. while he was under house arrest had contributed to an increase in her anguish and her fear that he might attack her again. She pointed out that his previous application for house arrest had been dismissed on the grounds, inter alia, of the proximity of the facility indicated to her home. 45. In this context the applicant claimed that on 25 June 2010 she had been intimidated by the manager of the reception centre, “Don Nicola ”, who had made indirect reference to his power to influence the proceedings concerning parental rights in order to prevent her from selling the company she co-owned with her former partner. 46. Moreover, the applicant pointed out that she had been contacted by a worker of the centre to set up a telephone conversation between J.C.N. and his son P. for the birthday of the latter on 2 August 2010. In her view, both of those episodes served to cast doubt on the choice of the reception centre in question. Lastly, she complained that after J.C.N. had finished serving his sentence, he had continued to reside at the same facility and had resumed contact with her in the form of an email exchange, which she perceived as inappropriate. 47. The applicant pointed out that in the light of the above she was in a position of vulnerability and that the authorities had failed to assist and support her, having omitted to put in place adequate measures to protect her from a repeat attack by J.C.N. She highlighted that children and other vulnerable individuals, in particular, were entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity. 48. The applicant maintained that the violence she had suffered and the consequent psychological distress had attained a sufficient level of severity to be considered as ill-treatment within the scope of Article 3 of the Convention. (b) The Government 49. On the merits of the case the Government submitted that the authorities had taken all reasonable measures to punish the perpetrator of the violence, to protect and support the applicant from the risk of violence and to prevent such violence from recurring. 50. The Government remarked that J.C.N. had been arrested and remanded in custody immediately after the attack on the applicant. The criminal proceedings thereafter had been conducted with due expedition and he had been sentenced to three years and four months ’ detention, a sentence proportionate to the crime with which he had been charged. The applicant ’ s former partner had served the majority of his sentence in a prison facility and only in June 2010 had been granted house arrest at a reception centre managed by an organisation called Sulle Orme. 51. The Government pointed out that a person under house arrest was still considered to be in detention; he did not enjoy freedom of movement and any violation of the house arrest conditions (set up by the post-sentencing judge) constituted a further crime. Moreover, J.C.N. had been placed in a facility the suitability of which, in terms of both security and rehabilitation prospects, had been carefully assessed by the authorities involved, in line with the gravity of the crime he had committed. 52. The Government argued that J.C.N. had participated in a programme of psychological support and rehabilitation organised by the Municipality of Soave and that the reports thereon had been positive. 53. In relation to one of the episodes referred to by the applicant to prove the inadequacy of the chosen facility (see paragraph 46 above), the Government, while not contesting its truthfulness, highlighted that the applicant had failed to report it to the authorities, thus denying them the possibility to intervene. The Government did not take a stand on the other episode referred to by the applicant (see paragraph 45 above). 54. As far as the contacts between the applicant and her former partner (following his release) were concerned, the Government submitted that if, as she claimed, the applicant had perceived such contacts as inappropriate or threatening, she had had at her disposal a specific protection against the crime of stalking. She had not availed herself of such a protection. 55. Lastly, the Government stressed that in the Verona province there were several centres specialising in the support and assistance of victims of violent crimes and that the applicant could easily have had access to one of them. 56. The Government concluded that the applicant had not submitted any valid arguments, facts or evidence corroborating the alleged lack of support and protection on the part of the authorities. 2. The Court ’ s assessment (a) General principles 57. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello ‑ Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C; Opuz v. Turkey, no. 33401/02, § 158, 9 June 2009; and Eremia v. The Republic of Moldova, no. 3564/11, § 48, 28 May 2013). 58. The Court further reiterates that Article 1 of the Convention, taken in conjunction with Article 3, imposes on the States positive obligations to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment prohibited under Article 3, including where such treatment is administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998 ‑ VI; Opuz, cited above, § 159; and Eremia, cited above, § 48). This obligation should include effective protection of, inter alios, an identified individual or individuals from the criminal acts of a third party, as well as reasonable steps to prevent ill-treatment of which the authorities knew or ought to have known (see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998 ‑ VIII; E. and Others v. the United Kingdom, no. 33218/96, § 88, 26 November 2002; and J.L. v. Latvia, no. 23893/06, § 64, 17 April 2012). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see A. v. the United Kingdom, cited above, § 22). 59. It is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (see, mutatis mutandis, Bevacqua and S. v. Bulgaria, no. 71127/01, § 82, 12 June 2008). At the same time, under Article 19 of the Convention and in accordance with the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007). (b) Application of these general principles in the present case (i) Whether the applicant was subjected to ill- treatment within the meaning of Article 3 of the Convention 60. The Court considers that the applicant was a “vulnerable individual” having regard to the physical injuries she suffered on 16 November 2008 and her fear of further violence. 61. The Court considers that such violence and the psychological consequences of it were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention. 62. In such circumstances, the Court finds that Article 3 of the Convention was applicable to the present case. It must therefore determine whether the authorities ’ actions in response to the applicant ’ s complaints complied with the requirements of that provision and whether the national authorities took all reasonable measures to prevent the recurrence of violent attacks against the applicant ’ s physical integrity. (ii) Whether the authorities complied with their positive obligations under Article 3 of the Convention 63. The States ’ positive obligations under Article 3 of the Convention include, on the one hand, setting up a legislative framework aimed at preventing and punishing ill-treatment by private individuals and, on the other hand, when aware of an imminent risk of ill-treatment of an identified individual or when ill-treatment has already occurred, applying the relevant laws in practice, thus affording protection to the victims and punishing those responsible for ill-treatment ( see Eremia v. The Republic of Moldova, cited above, § 56). 64. Turning to its examination of the facts, the Court notes that the authorities, namely the carabinieri, the public prosecutors and the domestic courts did not remain passive after the incident on 16 November 2008. The applicant ’ s former partner was immediately arrested and remanded in custody. He was charged with attempted murder, kidnapping, aggravated violence and threatening behaviour. The criminal proceedings were conducted with due expedition and he was sentenced to three years and four months ’ detention (see paragraphs 1 2 -1 6 above). 65. The Court considers that in relation to the custody of the couple ’ s children, the response of the authorities was also effective. The applicant was granted sole custody and her former partner ’ s parental rights were forfeited (see paragraphs 2 4 -2 6 above). 66. As far as the protection afforded to the applicant is concerned, the Court cannot but observe that the knowledge of the presence of her former partner at some 15 kilometers from her residence had a negative impact on the applicant. 67. However, the Court observes that, before granting J.C.N. ’ s application for house arrest, the post-sentencing judge carefully assessed, with the help of the carabinieri, who provided a detailed report, the suitability of the facility chosen, in accordance with the gravity of the crime committed by J.C.N. The decision appears to have been taken after a careful assessment of the situation. 68. The fact that a previous application for house arrest had been turned down on the basis, inter alia, of the proximity of the facility to the applicant ’ s home does not per se invalidate the authorities ’ decision in relation to the protection of the applicant. The court finds that in view of the fact that a different facility was indicated and that time had elapsed since the last application, it was not unreasonable for the judge to reach a different conclusion in relation to the danger of a repetition of the crime by J.C.N. 69. The episodes relied on by the applicant to corroborate her claims (see paragraphs 46-47 above), which were not contested by the Government, were not attributable to the location of the chosen facility. Moreover, by not reporting those episodes, the applicant denied the authorities the opportunity to intervene. Specifically, the post-sentencing judge was in a position to evaluate their compatibility with J.C.N. remaining in the facility and the juvenile court was in a position to assess whether the prohibition on J.C.N. contacting his children had been infringed. 70. In relation to the complaint that the applicant ’ s former partner had not undergone psychological therapy, the Court notes that, contrary to the applicant ’ s claim, the judgments of the domestic courts in the criminal proceedings against him had not ordered that any psychological therapy be followed (unlike in the case of A. v. Croatia, no. 55164/08, 14 October 2010). 71. On the other hand, although the Venice Juvenile Court divested J.C.N. of his parental rights, it recommended that he receive psychological support therapy as a precondition to his requesting the restoration of such rights. The Court observes that the Government submitted proof that the applicant ’ s former partner had participated in such a psychological support programme aimed at appreciating and analysing the gravity of his conduct. 72. In relation to the applicant ’ s claim that she had not been kept informed about the criminal proceedings against J .C.N., the Court notes that the Convention may not be interpreted as imposing a general obligation on States to inform the victim of ill-treatment about the criminal proceedings against the perpetrator, including about possible release on parole from prison or transfer to house arrest. Furthermore, the Court notes that under the applicable Italian law, such information has only to be provided to the victim of a crime who intervened as a civil party to the proceedings, and that the applicant chose not to do so. 73. Furthermore, the Court cannot fail to observe that from a reading of the email exchange (submitted by the applicant) between the applicant and her former partner ( see paragraph 3 0 above), the relationship between them appeared to be relatively calm and harmonious. The applicant indicated, inter alia, her availability to meet her former partner and provided information on the well - being of their children. Her former partner appeared to accept the applicant ’ s new relationship. 74. The Court also notes that no further threats or episodes of violence occurred either after the applicant ’ s former partner was granted house arrest or after he was released. 75. Lastly, the Court finds that the remainder of the applicant ’ s complaints (see paragraphs 42-43 above) are unsubstantiated and unsupported by the material submitted. 76. In the light of the above considerations, the Court concludes that the authorities had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework was effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity. 77. There has accordingly been no violation of Article 3 of the Convention. In view of that finding, the Court concludes for the same reasons that there has been no breach of Article 3 in conjunction with Article 14 of the Convention. | The Court held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention. It found that the Italian authorities had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework had been effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity. |
Subsets and Splits